Chattisgarh High Court
Nand Kumar Patel vs State Of Chhattisgarh on 1 February, 2024
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 909 of 2018
• Nand Kumar Patel S/o Shouki Lal Patel Aged About 28 Years R/o-
Village Naugadi, Police Chowki Bhawanpur, P.S. Basna, District-
Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh
---- Appellant
Versus
• State Of Chhattisgarh Through- The Police Station Basna, District-
Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh
---- Respondent
(Cause-title taken from Case Information System) For Appellant - Mr. Abhishek Saraf, Advocate For State/Respondent - Mr. Law Sharma, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 01.02.2024
1. The present appeal arise out of the judgment of conviction and sentence dated 29.05.2018, passed by the Special Judge (POCSO Act-2012), Saraipali, District - Mahasamund (C.G.) in Special Criminal Case No.15/2017, whereby appellant has been convicted and sentenced for the offence as mentioned below :
CONVICTION SENTENCE Under Section 363 of : R.I. for 3 years and fine of Rs.300/- in default IPC of payment of fine amount further R.I. for two months.
Under Section 366 of : R.I. for 5 years and fine of Rs.300/- in default IPC of payment of fine amount further R.I. for two months.
Under Section 376 of : R.I. for 7 years and fine of Rs.300/- in default IPC of payment of fine amount further R.I. for two months.
Under Section 06 of : R.I. for 10 years and fine of Rs.300/- in default POCSO Act, 2012 of payment of fine amount further R.I. for two months.
(All sentences run concurrently) -2-
2. Brief facts of the case are that on 09.07.2017, a written report Ex.P/13 was lodged by the mother of the prosecutrix alleging that appellant has kidnapped/abducted her minor daughter aged about 14 years on 03.07.2003 at about 06:00 PM and after committing rape upon her for about 11 days, he left her to Village - Navgadhi and therefore she has lodged a report. Based on the written report lodged by the mother of the prosecutrix an unnumbered FIR Ex.P/14 was registered at Police Station - Basna, District - Mahasamund for offence under Sections 363, 366, 376 and 34 of IPC. Based on the unnumbered FIR, the numbered FIR Ex.P/11 was registered on 09.07.2017 at Police Station - Basna and the police has started investigation. The prosecutrix was sent for her medical examination to CHC, Pithora, where PW-10 Dr. Kiran has examined her and given her report Ex.P/12, after her examination the Dr. has not found any injury over the body of the prosecutrix and opined that there is no sign of forceful sexual intercourse, as she is habitual to intercourse. Two slides of vaginal swab of prosecutrix was prepared and handed over to the Police for its FSL examination. She also examined the underwear of the prosecutrix and the same was also sent for FSL examination. Spot map Ex.P/19 was prepared by the Police and Ex.P/4 was prepared by the Patwari. With regard to the age of the prosecutrix the School Register from the Govt. Primary School, Milarabad was seized vide Ex.P/1. The motorcycle was also seized from the appellant vide Ex.P/2. The mark-sheet of Class - 5 of the -3- prosecutrix has also been seized vide Ex.P/7. After retaining the attested true copy of the School Register, the same was returned back to the school and the attested true copy of the School Register is Ex.P/8C in which the date of birth of the prosecutrix is mentioned as 03.07.2003.
3. The slides of vaginal swab of the prosecutrix and her underwear was seized vide Ex.P/9. The appellant was arrested on 12.07.2017 and he was sent to CHC, Basna vide Ex.P/23, for his medical examination by the Doctor. The semen slide & underwear of the appellant has been seized by the Police vide Ex.P/10. The statement of the prosecutrix was recorded under Section 164 of CrPC which is Ex.P/18. The statement of witnesses under Section 161 CrPC has also been recorded. The underwear of the prosecutrix, two slides of vaginal swab, underwear of the appellant as well as semen slide of the appellant was sent for FSL examination, fromwhere FSL report Ex.P/24 was received and according to the FSL report, in the slides of vaginal swab of the prosecutrix and underwear, semen slides of the appellant, semen and sperms were found however there is no semen or sperms were found in the underwear of the prosecutrix. After completion of the investigation the charge-sheet was filed on 09.10.2017 before the trail Court for the offences under Section 363, 366, 376 of IPC and Section 06 of POCSO Act.
4. The charge-sheet was filed against the appellant and the co- accused Chhotu Patel alias Mahesh Patel who initially absconding and during course of trial he was arrested. on 27.10.2017, the -4- charges under Section 363, 366, 376 of IPC and Section 06 of POCSO Act has been framed against the present appellant whereas on 15.12.2017 the charges under Section 363/109 of IPC and Section 17 of POCSO Act was framed against the co-accused Chhotu Patel alias Mahesh Patel. The accused persons abjured their guilt and claimed trial.
5. In order to establish the charge against the accused persons, the prosecution has examined 15 witnesses. The statements of the accused persons under Section 313 of the CrPC have also been recorded in which they denied the material appears against them and plead innocence and submitted that they have falsely implicated in the offence.
6. After appreciation of evidence available on record the trial Court has acquitted the Chhotu Patel alias Mahesh Patel from the alleged offences but has convicted and sentenced the present appellant as mentioned in para-1 of this judgment, hence, this appeal.
7. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the offence. The prosecution is failed to prove the case beyond reasonable doubt. There is no legally admissible evidence with regard to the age of the prosecutrix so as to hold that on the date of the incident she was less than 18 years of age. The prosecution is relied upon the School Admission and Discharge Register but in absence of examination of its author the same cannot be taken into consideration as the substantive peace of evidence with regard to -5- the age of the prosecutrix. There is no any Kotwari Register or birth certificate or even the ossification report has been produced by the prosecution and therefore the prosecution has failed to prove that the prosecutrix was minor on the date of incident. He would further submits that the prosecutrix was in love affair with the appellant and the prosecutrix herself went alongwith him without raising any objection. They went to the Jammu & Kashmir by train but she has not made any complaint to the person met by her in the train. She stayed with the appellant for a considerable period of 7-8 days. Had she been forcefully taken by the appellant she would raised alarm or tried to protest but she did not do anything. She may had made any complaint to the person at Jammu & Kashmir where they stayed about a week, so in view of the conduct of the prosecutrix, the offence of kidnapping/abducting is not proved by the prosecution as also the offence of rape has also not been proved. It is further submitted that the prosecutrix has made physical relation with the appellant on her own will and consent and there is no any forceful act committed by the appellant with her. Therefore the appellant is entitled for his acquittal.
8. On the other hand learned counsel for the State opposes the argument advanced by the learned counsel for the appellant and have submitted that the prosecutrix was minor on the date of incident which has been proved by the PW-6, who is the headmaster of the school fromwhere the School Admission and Discharge Register of the prosecutrix was seized in which her date of birth is mentioned as 03.07.2003. From the evidence of the -6- prosecutrix it has also been proved that the appellant has taken her without her consent and kept her away from lawful guardianship and thereby he has committed the offence of kidnapping/abducting her and he would further submit that even if some consensual act of physical relation is come on record that itself cannot be consider to be a consensual sexual intercourse because the prosecutrix was minor on the date of incident and her consent is immaterial, therefore the trial Court has rightly convicted the appellant and the impugned judgment needs no interference.
9. I have heard the learned counsel for the parties and peruse the material available on record.
10. Regarding the age of the prosecutrix the prosecution has mainly relied upon the School Admission and Discharge Register Ex.P/8C, which is sought to be proved by PW-6, Jaikrishna Bhoi, who is the headmaster of the Primary School, Milarabad. He stated in his deposition that he is posted as headmaster of Primary School, Milarabad. The police has asked for School Admission and Discharge Register with respect to the prosecutrix and seized the same vide Ex.P/1, after retaining the true copy of the register, the original was returned back to the School and he brought the original school register with him. In the said school register, at Sl.No. 233, the name of the prosecutrix is mentioned and her date of birth is recorded as 03.07.2003. The original School register is Ex.P/8 and its attested true copy is Ex.P/8C. In cross-examination he has admitted that he has not made entry in the said school register. He further admitted that the person who has got entry -7- made in the school register with respect to the date of birth of the prosecutrix, his signature is also not there in the register. He further admitted that in the school register the entry made with respect to the prosecutrix it has not been mentioned that at the time of date of birth it wall tallied with the Kotwari panji. He further stated that he could not know as to the date of birth of the prosecutrix was recorded on assumption or not. The conclusion of evidence of PW- 6 is that he is not the author of the School Admission and Discharge Register Ex.P/8C. Hence, on what basis her date of birth is recorded in the school register there is no evidence with this respect.
11. The PW-12 the prosecutrix has stated in her deposition that her date of birth is 03.07.2003 and she studied upto Class-5 at Village
- Milarabad and upto 8th at Village - Nawgadhi. She has been declared hostile and she denied her police statement Ex.P/20. PW- 11 the mother of the prosecutrix has stated in her deposition that the prosecutrix is her daughter and aged about 14 years. She too has been declared hostile and denied her police statement Ex.P/16. She has stated in her cross-examination that the written report Ex.P/13 was prepared by an advocate who is her landlord and she does not know what has been written on that report and she has only signed it. PW-13 the father of the prosecutrix have also stated that her daughter is aged about 14 years. This witness has also turned hostile. In cross-examination he has admitted that he do not know in which year his daughter born.
12. There is no any Kotwari Register, ossification test report or even -8- the birth certificate has been produced by the prosecution to prove the age of the prosecutrix that on the date of incident the prosecutrix was minor. PW-15, Yudheswar Pratap Singh,the investigating officer has stated in para-11 of his deposition that he has not obtained any radiological report regarding age of the prosecutrix and no any Kotwari register has been seized by him.
13. In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon'ble Supreme Court has held as under :
"26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
14. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, 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 prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the -9- transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.
15. 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 -10- the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."
43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-
"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."
44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-
"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 -11- 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."
16. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under :
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 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. -12- 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."
17. 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 -13- 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:
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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 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."
18. Since there is no legally admissible evidence available on record with respect to the age of the prosecutrix so as to hold that on the date of incident she was minor or less than 18 years of age, it cannot be hold that she was minor on the date of incident yet the trial Court has held her minor. Therefore I set-aside the findings recorded by the learned trial Court that on the date of incident the prosecutrix was minor.
19. So far as the kidnapping/abducting and making forceful sexual intercourse with the prosecutrix by the appellant is concerned I have gone through the evidence of prosecutrix as well as other witnesses. PW-12 the prosecutrix has stated in her deposition that -15- since 6-7 months back the appellant has made physical relation with her at Milarabad school on the pretext of marriage. After 2-3 months of making physical relation, the appellant has taken her to Jammu & Kashmir. Firstly she has gone from Milarabad to Bilaspur railway station by a motorcycle and from there they went to Jammu & Kashmir by train. She stayed there for about a week and in the meantime while staying there alongwith the appellant he was making physical relation with her and thereafter he left her near her house. This witness has turned hostile and denied by giving police statement Ex. P/20 and denied the suggestion given by the defence. PW-11, the mother of the prosecutrix has stated in her deposition that the appellant has taken her daughter 7 months back to Jammu & Kashmir and after keeping her about 6-7 days he left her in the village. This witness has also turned hostile and denied the police statement given by her vide Ex. P/16. In cross- examination she has stated that what has been written in the written report she could not know. PW-13, the father of the prosecutrix has also stated in his deposition in the same manner as the mother of the prosecutrix has stated. This witness also turned hostile and denied the fact that the prosecutrix has informed him about the incident. In cross-examination he has admitted that the prosecutrix was having love affair with the appellant. He further admits that her daughter has informed him only about the elopement and has not informed about any physical relation with him.
20. The Doctor PW-10 who has medically examined the prosecutrix -16- have not found any external or internal injury over the body of the prosecutrix and no signs of forceful sexual intercourse were found on her body.
21. In the matter of S. Varadarajan Vs. State of Madras, reported in AIR 1965 SC 942, the Hon'ble Supreme Court has held in para 9 and 10 of the judgment as follows : -
"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 s. 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 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"."-17-
22. 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 levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case.
23. From the close scrutiny of the witnesses it is clear that the prosecution has failed to prove that the prosecutrix was minor and less than 18 years of age on the date of incident. She was not kidnapped/abducted by the appellant but she herself left the house and went alongwith him and stayed there at Jammu & Kashmir for a considerable period of 7-8 days. She has not made any complaint to anybody on the way upto the Jammu & Kashmir as also the place where she stayed alongwith the appellant, therefore, from the conduct of the prosecutrix it can safely be hold that the -18- prosecutrix is the consenting party in making physical relation with the appellant on her own will and consent.
24. For the foregoing reasons the appeal is allowed. The judgment of conviction and order of sentence of the appellant is set aside and the appellant stands acquitted from all the charges. The appellant is reported to be in jail since 12.07.2017, he is directed to be released forthwith if not required in any other case.
25. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties 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.
26. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/-
(Ravindra Kumar Agrawal) Judge Ravi Mandavi