JUDGMENT : RAMESH SINHA, J. 1. The appellants have filed this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 19.01.2022 passed in Special Sessions Trial No. 71 of 2019 by which the learned Special Judge under the Protection of Children from Sexual Offences Act, 2012, Fast Track Court, Kabirdham, has convicted the appellants as under: Accused/Appellant-Ashwan Sahu Conviction under Section Sentence (Rigorous imprisonment) Fine In default of payment of fine additional rigorous imprisonment 363 IPC 7 years Rs. 500/- 01 months 366 IPC 7 years Rs. 500/- 01 months 506 IPC 2 years Rs. 200/- 15 days 6 of the Protection of Children from Sexual Offences Act, 2012 Life imprisonment 1000/- 02 months Accused-Appellant - Chhabilal Janghel, Mukesh Nirmalkar, Itwari: Conviction under Section Sentence Fine In default of payment of fine additional rigorous imprisonment 368 IPC 07 years 500/- 01 month 17 of the Protection of Children from Sexual Offences Act, 2012 10 years 1000/- 01 month 21 of the Protection of Children from Sexual Offences Act, 2012 06 months 100/- 01 month 2. Case of the prosecution, in short, is that on 09.07.2019 at about 9:30 p.m. the convict-Ashwan Sahu is alleged to have taken the minor victim girl illegally from the lawful guardianship of her parents with an intent to marry her. The victim had gone to the washroom but when she did not return after some time, it was discovered that the convict-Ashwan Sahu had given false assurance of marrying the victim and took her with him. The other convicts-appellants namely Chhabilal Janghel, Mukesh Nirmalkar, Itwari Janghel and Sunit Kumar Patel are alleged to have helped the convict-Ashwan Sahu in kidnapping the victim. The convict-Ashwan Sahu is also alleged to have committed forceful sexual intercourse with the victim. 3. The FIR (Exhibit P/3) was lodged by Mohit Ram Sahu (PW-2), father of the victim, on 10.07.2019 at 14:30 hours at Police Station Kabirdham which was registered as Crime No. 317/2019 for the offence under Section 363 of the Indian Penal Code alleging that the convict-Ashwan Sahu had kidnapped the victim. 4. After investigating the matter, the police submitted the police report alongwith charge-sheet against the appellants/convicts namely Ashwan Sahu, Chhabilal Janghel, Mukesh Nirmalkar, Itwari Janghel and Sunit Kumar Patel for the offences under Sections 363, 366, 376, 368, 34 of the IPC and Section 3, 4 of the POCSO Act, 2012. 5. 4. After investigating the matter, the police submitted the police report alongwith charge-sheet against the appellants/convicts namely Ashwan Sahu, Chhabilal Janghel, Mukesh Nirmalkar, Itwari Janghel and Sunit Kumar Patel for the offences under Sections 363, 366, 376, 368, 34 of the IPC and Section 3, 4 of the POCSO Act, 2012. 5. Accordingly, Sessions Trial No. 71/2019 was registered and the learned Special Judge, POCSO Act, 2012 (F.T.C.) Kabirdham framed charges on 26.09.2019 against the convicts as mentioned above. The convict/appellants abjured the guilt and prayed for trial. 6. Amongst others, the prosecution has exhibited the following documents in support of its case: (i) Application for medical examination of victim and medical examination report (Exhibit P/1A and P/1) (ii) Memo for query of seized undergarment of victim and report (Exhibit P/2) (iii) First Information Report (Exhibit P/3) (iv) Crime Details form (Exhibit P/4) Spot map (Exhibit P/5) (v) Recovery Panchnama (Exhibit P/6) Consent letter (Exhibit P/7) (vi) Property seizure memo (mark-sheets of class 10th, 8th and class 5 of the victim and Dakhil Kharij Register) (Exhibit P/8 and P/9) (vii) Copy of Dakhil Khariz Register (Exhibit P/10C) (viii) Property seizure memo (undergarment of the victim) (Exhibit P/11) (ix) Statement of victim under Section 164 Cr.P.C. (Exhibit P/12) (x) Property seizure memo (mobiles and motor cycle used in the crime) (Exhibit P/13 to P/17) (xi) Confession Panchnama (Exhibit P/18) (xii) Property seizure memo (Undergarment of Ashwan Sahu) (Exhibit P/19) (xiii) Application for medical examination of convict-Ashwan Sahu and Medical Examination Report (Exhibit P/20 and P/21) (xiv) Property seizure memo (Exhibit P/22 to P/26) Arrest memo (Exhibit P/27 to P/31) (xv) Memo regarding providing X-ray report of victim (Exhibit P/32) (xvi) Receipts of Exhibits (Exhibit P/33) FSL Report (Exhibit P/34) (xvii) X-ray Report (Exhibit P/35) Article A-1 Pen Drive (xviii) Article A-2 Copy of mark-sheet of victim 7. In order to bring home the offence, prosecution examined as many as 13 witnesses namely: (i) Dr. Hina Ahmad (PW-1): She is the Doctor who had medically examined the victim. In her deposition, she stated that on 15.07.2019, a lady constable namely Anita Shyam brought the victim to District Hospital Kabirdham. On examination of the victim, she found that she was in a normal state. There was no external or internal injury. Her breasts were developed, secondary genitals were fully developed, hymen was old torn and the uterus was normal. In her deposition, she stated that on 15.07.2019, a lady constable namely Anita Shyam brought the victim to District Hospital Kabirdham. On examination of the victim, she found that she was in a normal state. There was no external or internal injury. Her breasts were developed, secondary genitals were fully developed, hymen was old torn and the uterus was normal. She had prepared two vaginal smear slides and after sealing it, it was handed over to the lady constable for chemical examination. For ascertaining the age of the victim, she had advised for x-ray and, U.P.T and sonography. She had prepared the report (Exhibit P/1). On that date itself, the said lady constable had brought one underwear which had white stains which was marked by blue ink. The said underwear was sealed and handed over to the lady constable for chemical analysis. In her cross examination, she states that the victim was mature physically. She admitted that when a female is habiutal of sex, the hymen is found to be torn. She admitted that she cannot tell as to how many times the victim was subjected to sexual intercourse. Except old torn hymen, there was no other symptoms of sexual intercourse. (ii) Mohit Ram Sahu (PW-2): He is the father of the victim. He stated that the age of the victim was 17 years and 10 months. He has narrated the incident as to how the victim went missing. He stated that the victim used to sleep in the room of her grand-parents. He went there and when he checked the mobile of the victim, he saw that the last call which was received was of the convict-Ashwan Sahu. He made calls on the said number but no one received the call. When second attempt was made, the said number was switched off. He alongwith some others went in search of Ashwan Sahu and reached village Katori. There they found one Ashwan Sahu and after talking to his father, he came to know that there was another Ashwan Sahu in the said village. They reached the house of the convict-Ashwan Sahu. The parents of Ashwan Sahu informed him that at about 3:00 p.m. he had gone out for purchasing some articles. His parents assured this witness that they would help him in searching his daughter. (iii) In his deposition, he states that he had studied upto class 12th. They reached the house of the convict-Ashwan Sahu. The parents of Ashwan Sahu informed him that at about 3:00 p.m. he had gone out for purchasing some articles. His parents assured this witness that they would help him in searching his daughter. (iii) In his deposition, he states that he had studied upto class 12th. He himself had admitted the victim in the school but at that time, he had not submitted any birth certificate. He further states that at the time of admission, he had intimated about the date of birth according to his assumption. He had admitted the victim at Maa Karma Vidya Mandir, Khairbnakala. She studied in that school for two years and when the said school was closed, he admitted his daughter at Government Primary School, Khairbnakala. He also could state with certainty as to when he admitted his daughter. He further states that he was not aware as to whether any entry was made by the Kotwar with regard to the birth of his daughter. He has two children including the victim but he did not have birth certificate of any of them. He stated his age to be around 41-42 years. (iv) Kabit Ram Sahu (PW-3): He denied that he knew any of the accused persons. He is a medical store owner. He knew the victim and her father as the was having family relationship. On 10.07.2019, at about 5-530 a.m. he saw the victim standing alone near a green coloured motor cycle and was surprised to see her early in the morning. After moving some distance forward, when he turned and saw, he found that one man took the victim on her motor cycle towards Kumhari. Thereafter, he made a phone call to Yagyeshwar (PW-7) as to whether the victim was studying at Kumhari or Raipur upon which PW-7 informed him that the victim had gone missing since 9:00 p.m. He further states since the victim was his relative, he was giving false statement against the accused persons. In cross examination, he admits that he had not seen the number of the motor cycle or that he was giving false statement on saying of the father and uncle (Chacha) of the victim. (v) Ram Kumar Dhruv (PW-4): He is the Patwari of Patwari Halka No. 38, Rajanwagaon, Tahsil Bodla, District Kabirdham. In cross examination, he admits that he had not seen the number of the motor cycle or that he was giving false statement on saying of the father and uncle (Chacha) of the victim. (v) Ram Kumar Dhruv (PW-4): He is the Patwari of Patwari Halka No. 38, Rajanwagaon, Tahsil Bodla, District Kabirdham. He had prepared a spot map (Exhibit P/5) as narrated by the complainant. He states that the complainant had told him that the place of incident was toilet and not the kitchen garden (Badi). (vi) Ishwar Lal Sahu (PW-5): He was posted as Head Master at Primary School, Khairbnakala from 2015 to 2019. He states that police had seized the admission/discharge register (Exhibit P/9) in respect of ascertaining the date of birth of the victim. According to the said exhibit, in the year 2008, the victim was admitted in Class III. He further admits that there is no mention with regard to the basis on which the date of birth of the victim was written. This witness was not posted in that school when the victim was admitted. He further states that he cannot say with certainty as to whether the date of birth mentioned in Exhibit P/10 was correct or wrong. (vii) Victim (PW-6): She states that she had studied upto class 12th. Thereafter, she had undergone one year COPA training but the result was awaited. She states that on the date of incident, at about 9:00 p.m when she went to the bathroom situated in the kitchen garden (Badi), two persons came out of which one gagged her mouth and the other forcefully made her to sit on the motorcycle and took her towards village Bamhni. One of those persons was Ashwan Sahu and other who had gagged her mouth was Sumit Patel. She states that both these persons took him to village Bamhni where the accused-Nirmalkar is having a computer and auto shop and locked the shop from the inside. She pleaded them to leave her. There was two blocks in the said shop. In one block, accused Ashwan Sahu committed rape upon her and threatened her that if she tried to scream or make any noise, he would kill her. She pleaded them to leave her. There was two blocks in the said shop. In one block, accused Ashwan Sahu committed rape upon her and threatened her that if she tried to scream or make any noise, he would kill her. On the next day, Ashwan Sahu took her to Raipur from village Bamhni and from Raipur to Tilda where also Ashwan Sahu committed rape upon her for two days in the house of Itwari Janghel. Accused Ashwan Sahu committed rape upon her at Saddu also and where she was kept in captivity for two days and on 14.07.2019, the police personnel came and rescued her. The victim further states that she was medically examined and thereafter her statement under Section 164 Cr.P.C. (Exhibit P/12) was also recorded. Thereafter, her X-ray and urine tests were conducted. She has stated that she studied from KG-II to Class IV in a private school and from class V, she studied in Government Primary School, Kharbnakala. In the cross-examination, she states that she cannot say as to who had gagged her mouth and who had caught hold of her. She further states that she used to get phone calls from unknown numbers but she never informed about this incident to her father. The SIM which she was using was in her own name and at the time of purchase of the SIM, she was aged about 17 years. She has denied of having any love affair with the accused-Ashwan Sahu or that she knew her before the incident. (viii) Yagyeshwar Sahu (PW-7): He is the uncle (Chacha) of the victim. He states that he knew the accused persons as well as the accused-Ashwan Sahu. He also narrates the sequence of events which occurred on 09.07.2019. Kabit Sahu, who is his brother in relation, who had gone to Raipur for some work, informed him that he had seen the victim at village Kumhari. Thereafter, on 12th or 13th of July, 2019, he alongwith A.S.I. Sanjay Yadav and two other police persons went to Raipur where they tried to search but they could not find the victim. He had described how the victim was recovered from the possession of the accused-Ashwan Sahu. He admits that he had not gone to village Kotri in search of the victim. He had described how the victim was recovered from the possession of the accused-Ashwan Sahu. He admits that he had not gone to village Kotri in search of the victim. He further admits that he cannot say as to at which places he had signed on Exhibit P/13, P/14, P/15, P/16, P/17 and P/8. (ix) Pankaj Patel (PW-8): He stated that he neither knows the accused Ashwan Sahu nor the victim. He states that the police officials had taken his signature on a paper and he had also signed the Baramadgi Panchnama (Exhibit P/6). He states that he gives house on rent. He admits that the house situated at Saddu was given to the accused Ashwan on rent. He states that it was incorrect to say that the police had recovered the victim from the possession of the accused-Ashwan before him. He further states in the cross examination that no recovery proceedings were carried in his presence by the police. (x) Vijendra Tiwari (PW-9): On 10.07.2019, he was posted as Assistant Sub Inspector at Police Station, Kawardha. On the said date, Mohit Sahu (PW-2) had lodged a report with regard to his missing daughter. He admits that according to the FIR, the complainant had not seen the accused-Ashwan Sahu taking the victim alongwith him. He had asked as to when he came to know the name of the accused, the complainant did not say anything to him. At the time of lodging of the FIR, the complainant had not informed him about the colour, make or the number of the motorcycle. There was no mention in the FIR by the complainant that he came to know about the name of the accused-Ashwan Sahu from the Truecaller when they dialled the number in the mobile phone of the grandfather of the victim. (xi) Sanjay Kumar Yadav (PW-10): He is the investigating officer. When he received the case diary, on 12.07.2019, he went to the place of incident and prepared the spot map (Exhibit P/4). On 14.07.2019, from the possession of accused-Itwari, he seized one Samsung mobile (Exhibit P/17) and from accused-Ashwan Sahu, he recovered and seized one Oppo Mobile (Exhibit P/13). Further, from the possession of accused Chabilal, he seized one mobile of Coolpad company (Exhibit P/14) and from accused-Mukesh Nirmalkar, he seized one Vivo mobile (Exhibit P/16). On 14.07.2019, from the possession of accused-Itwari, he seized one Samsung mobile (Exhibit P/17) and from accused-Ashwan Sahu, he recovered and seized one Oppo Mobile (Exhibit P/13). Further, from the possession of accused Chabilal, he seized one mobile of Coolpad company (Exhibit P/14) and from accused-Mukesh Nirmalkar, he seized one Vivo mobile (Exhibit P/16). On 14.07.2019, he also seized one Hero Impulse motorcycle (Exhibit P/15) and on the said date itself, from the possession of the accused-Ashwan Sahu, the victim was recovered and accordingly, Baramadgi Panchnama (Exhibit P/6) was prepared. On 14.07.2019, the underwear of the accused-Ashwan Sahu was seized (Exhibit P/19) and the undergarment of victim was also seized (Exhibit P/11) and the victim was sent for medical examination to District Hospital Kabirdham vide Exhibit P/1A. On 15.07.2019, the accused-Ashwan Sahu was sent for medical examination. This witness has further deposed the sequence of investigation done, seizure of articles and recording of statements of the witnesses. On 14.07.2019, the accused Ashwan Sahu, Itwari Janghel, Chabilal Janghel, Mukesh Singh Nirmalkar were arrested in accordance with law and the arrest memo Exhibit P/27, P/28, P/29 and P/30 were prepared. The seized articles were sent to the FSL, Raipur through the Superintendent of Police, Kabirdham. During the course of investigation, he had recorded the statements of victim, Yagyeshwar Sahu, Premchand, Kabit Sahu, Ratanram Sahu, Nikita Sahu, Mohit Ram Sahu, Manish Gyanchandani, Janaram Sahu. In the cross-examination, the IO has admitted that he had not produced any document with regard to call details or call location of the accused. He also states that the accused-Itwari had kept the accused Ashwan and the victim in his house. (xii) Manish Kumar Gyanchandani (PW-11): He stated that he knew the accused-Itwari. The accused used to do the work of Driver and loader. When he was shown the photograph of Ashwan Sahu, he stated that he knew that person also. He stated that about 1 year ago, Ashwan alongwith Itwari had come to his shop and asked with regard to taking a house on rent. A CCTV footage which was given by this witness to the police when Ashwan and Itwari had came to his shop. He further states that he cannot state with certainity as to at which place the said pen-drive was seized by the police. He stated that he gives his house on rent but mostly that work is managed by his father. He further states that he cannot state with certainity as to at which place the said pen-drive was seized by the police. He stated that he gives his house on rent but mostly that work is managed by his father. He further states that they usually give the house to the families but sometimes they gave the house to the bachelors also. (xiii) Dr. Ujjwal Kumar (PW-12): He is the Doctor who was posted as R.M.O. at Dr. Bhimrao Ambedkar Hospital, Raipur. He stated that on 26.07.2019, in order to ascertain the age of the victim, two x-ray plates were produced before him and he had opined the age of the victim to be in between 17 to 18 years. He had opined the age on the basis of the fact that the lower end of the radius and ulna were fused which happens at the age of 17 years. Since the iliac crest was not fused which means the age the victim was less than 18 years. He admitted that he had not performed the X-ray of the victim and the X-ray was done by the technician. (xiv) Ratan Sahu (PW-13): He is the grand-father of the victim. He stated that he does not know any of the accused or the main accused Ashwan Sahu. According to him, the age of the victim on the date of deposition, would be 19 years. He also narrated the incident as to how the victim went missing in the night from the house. When he alongwith other checked the mobile phone of the victim, they saw that there were 20-25 missed calls of one Ashwan Sahu. Thereafter, they went to Kawardha Police Station for lodging of the FIR. The police told them that they should wait for some time and if the victim is not found, they would register the FIR on the next day. On the next day, they went in search of the victim where in the village they found one Ashwan Sahu and after some talks, they came to know that there was another Ashwan Sahu. When they reached to the house of the convict-Ashwan Sahu, they enquired about him who was also not available at his home. When till evening nothing could be ascertained, they went to lodge the FIR. He states that police had not taken any statement from him. When they reached to the house of the convict-Ashwan Sahu, they enquired about him who was also not available at his home. When till evening nothing could be ascertained, they went to lodge the FIR. He states that police had not taken any statement from him. When leading questions were asked to this witness, he informed the Court that when they were searching the victim, some boys of the village informed him that one boy had taken the victim alongwith him on a green coloured motor cycle. One Kabit Sahu of the said village had tried to follow them but he could not catch them as they were in a very high speed. This witness further stated that there were four-five other persons alongwith the main accused. This witness further states that whatever he had stated to the police, he cannot repeat those things word to word. He also could not state the number from which missed calls were made. 8. The statement of the convicts/appellants were recorded under section 313 Cr.P.C. on 06.07.2021 and 07.07.2021. They have expressed their ignorance about most of the questions, however, some of them were denied as well. They stated that they are innocent and have been falsely implicated. 9. In support of their case, the convict/appellants had got the statement of Mohit Ram Sahu, Kabit Sahu, victim, Yagyeshwar Sahu, Manish Kumar gyanchandani, Ratan Ram Sahu, recorded under Section 161 of the Cr.P.C. exhibited as Exhibit D/1, D/2, D/3, D/5 and D/6, and the photograph of the victim as Exhibit D/4, copy of Rojnamcha Sanha as Exhibit D/7, copy of affidavit sworn by the victim as Exhibit D/8 and register of the notary as Exhibit D/9C. 10. Jagdish Singh Thakur (DW-1) in support of the defence, has stated that he was appointed as Notary for Tahsil Kawardha in the year 1992. On 27.08.2020, the victim had produced an affidavit before him. He explained the contents of the affidavit to the victim which she admitted. The victim was identified by Rishi son of Murari. After admitting the contents of the affidavit, he notarised the said affidavit. An entry in this regard was made in his register at Serial No. 1106 at page 57 which bears the signature of the victim. In cross examination, he admits that there was no photograph on the affidavit. 11. The victim was identified by Rishi son of Murari. After admitting the contents of the affidavit, he notarised the said affidavit. An entry in this regard was made in his register at Serial No. 1106 at page 57 which bears the signature of the victim. In cross examination, he admits that there was no photograph on the affidavit. 11. The learned Special Judge, Kabirdham, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellants/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convict. 12. Mr. Dharmesh Shrivastava, learned counsel appearing for the appellants/convict [in Criminal Appeal No. 179/2022 and 182/2022] would submit that the appellants have been falsely implicated in this case. In fact, the victim and the main accused-Ashwan had a love affair between them and it is a case of elopement and not kidnapping as has been alleged by the prosecution. The victim remained with the appellant-Ashwan for five long days and during this period, she never made any hue or cry nor informed to anyone with regard to her kidnapping. The appellants have been made accused in this case only because they happen to be the friends of main accused-Ashwan Sahu. The victim was recovered from a house situated 130 Kms away from her own house which was a rented house. Most of the witnesses examined in this case are interested witnesses and as such, their statements should have been scrutinized with great care and caution. No offence under the POCSO Act is made out against the appellants as the victim was more than 18 years of age and had left her house on her own will. During the course of investigation, the investigating agency was advised to get the ossification test done to confirm the age of the victim. The mark-sheet of Class 8 submitted by the prosecution is not a conclusive proof of her age and the author of the said mark-sheet was also not examined. The convicts/appellants- Chhabilal Janghel, Itwari Janghel, Mukesh Nirmalkar and Sunit Kumar Patel were on bail during the trial. 13. Mr. Shrivastava, in support of his case, relies on the judgment of the Supreme Court in P. Yuvaprakash vs. State, Rep. The convicts/appellants- Chhabilal Janghel, Itwari Janghel, Mukesh Nirmalkar and Sunit Kumar Patel were on bail during the trial. 13. Mr. Shrivastava, in support of his case, relies on the judgment of the Supreme Court in P. Yuvaprakash vs. State, Rep. by Inspector of Police, (2023) SCC Online SC 846, Maheshwar Tigga vs. State of Jharkhand, (2020) 10 SCC 108 , Sat Prakash vs. State of Haryana, (2015) 16 SCC 475 , a Division Bench judgment of this High Court in Dilharan Yadav vs. State of Chhattisgarh, (2023) SCC Online Chh. 2610 and State of Chhattisgarh vs. Rameshwar Kuldeep in Cr. M.P. No. 2699/2019, decided on 16.12.2019, a Single Bench judgment of this High Court in Satyanarayan and Others vs. State of M.P. (Now Chhattisgarh), (2021) SCC Online 3912, a decision of the Single Bench of the High Court of Karnataka in Prasad A.A. vs. State of Karnataka, (2023) 0 Supreme (Kar) 98. 14. Mr. Aman Pandey, learned counsel appearing for the convict/appellant-Ashwan Sahu submits that there was a love affair between the accused and the victim. The victim is a major girl and she had eloped with the accused-Ashwan Sahu on her own. The entire story was fabricated later on as at no point of time, when the victim was travelling from one place to another, she ever made any hue and cry for help or rescue. It is not believable that a literate girl who is class 12th pass and is aware of her surroundings as she used to go to her school and institute for pursuing COPA course, could be so helpless that she was taken away forcibly. By no stretch of imagination it can be said that the victim was abducted/kidnapped by Ashwan Sahu with the assistance of any of the other co-accused and especially when there were so many members in the house at the time of alleged incident. Even the age of the victim has not been proved beyond reasonable doubt that she was a minor on the date of incident. The convict-Ashwan Sahu and the victim were in regular contact as it is the case of the prosecution itself that the name of accused was known to them when they checked the mobile which was being used by the victim where his number flashed for number of times. 15. Mr. The convict-Ashwan Sahu and the victim were in regular contact as it is the case of the prosecution itself that the name of accused was known to them when they checked the mobile which was being used by the victim where his number flashed for number of times. 15. Mr. Pandey, with respect to determination of age and the principles to be followed while arriving at a finding with respect to age, relies on the decision of the Supreme Court in Rishipal Singh Solanki vs. State of U.P. (2022) 8 SCC 602 , Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263 , Ashwani Kumar Saxena vs. State of M.P. (2012) 9 SCC 750 , decision of a Single Bench of this High Court in Rahul Jangde vs. State of Chhattisgarh, 2021 SCC Online Chh. 439 and Ajay Yadav vs. State of Chhattisgarh, 2020 SCC Online Chh. 1845. 16. In respect of Section 35 of the Evidence Act, he would rely on the decisions of the Supreme Court in XYZ vs. Abhisheik and Another, 2022 SCC Online SC 1200, C. Doddanarayana Reddy (Dead) by Legal Representatives and Others vs. C. Jayaram Reddy (Dead) by Legal Representatives and Others, (2020) 4 SCC 659 , Sanjeev Kumar Gupta vs. State of Uttar Pradesh and Another, (2019) 12 SCC 370 , Satpal Singh vs. State of Haryana, (2010) 8 SCC 714 , Desh Raj vs. Bodh Raj, (2008) 2 SCC 186 . 17. As heavy reliance has been placed by the learned trial Court on the sole testimony of the victim, Mr. Pandey relies on the decision of Supreme Court in Alamelu and Another vs. State, Represented by Inspector of Police, (2011) 2 SCC 385 , Raju vs. State of M.P. (2008) 15 SCC 133 , Santosh Prasad vs. State of Bihar, (2020) 3 SCC 443 , Rai Sandeep vs. State (NCT of Delhi), (2012) 8 SCC 21 . 18. So far as ascertaining the age of the victim is concerned, which according to Mr. 18. So far as ascertaining the age of the victim is concerned, which according to Mr. Pandey, the learned trial Court has erred in relying on the documents produced by the prosecution, would rely on the decision of the Supreme Court in Rajak Mohammad vs. State of H.P. (2018) 9 SCC 248 , Ram Suresh Singh vs. Prabhat Singh, (2009) 6 SCC 681 , Vishnu vs. State of Maharashtra, (2006) 1 SCC 283 and further in respect of the manner in which public documents are to be proved, he would rely on the decisions rendered by the Supreme Court in Narbada Devi Gupta vs. Birendra Kumar Jaiswal, (2003) 8 SCC 745 , a Division Bench decision of the Delhi High Court in Ruby vs. State, 2014 SCC Online Del. 2073, decision of the Bombay High Court in Om Prakash Berlia vs. Unit Trust of India, 1982 SCC Online Bom. 148 and Madholal Sindhu vs. Asian Assurance Co. Ltd. 1945 SCC Online Bom. 44. 19. On the other hand, Ms. Madhunisha Singh, learned Deputy Advocate General alongwith Mr. Avinash Singh, learned Panel Lawyer appearing for the State/respondent would submit that the learned Court below was fully justified in convicting and sentencing the convicts/appellants as mentioned in the opening paragraph. There is ample evidence on record to hold the appellants guilty of the offence. The order passed by the learned Court below needs no interference and the appeals filed by the convicts/appellants be dismissed. 20. Mr. Tarun Dansena, learned counsel for the victim appears and submits that though he had appeared when notices were issued to the victim while hearing the application for suspension of sentence and grant of bail to the convicts/appellants, at that point of time, he had instructions not to object the bail application in respect of convicts/appellants except-Ashwan Sahu. As on date, he has no instructions from his client. 21. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 22. All the appellants except Ashwan Sahu were on bail during the trial. Even after their conviction, the accused-Chhabilal Janghel, Itwari Janghel and Mukesh Nirmalkar were released on bail vide order dated 21.06.2022, accused-Sunit Kumar Patel was released vide order dated 11.05.2023. 23. There is no eye witness to the incident of alleged kidnapping. 22. All the appellants except Ashwan Sahu were on bail during the trial. Even after their conviction, the accused-Chhabilal Janghel, Itwari Janghel and Mukesh Nirmalkar were released on bail vide order dated 21.06.2022, accused-Sunit Kumar Patel was released vide order dated 11.05.2023. 23. There is no eye witness to the incident of alleged kidnapping. The victim is alleged to have been kidnapped by the accused-Ashwan Sahu and Sunit Kumar Patel and the other accused-Chhabilal Janghel, Itwari Janghel and Mukesh Nirmalkar are alleged to have assisted the main accused-Ashwan Sahu in kidnapping the victim and thereafter in commission of rape on the victim. 24. The incident is alleged to have taken place on 09.07.2019 at about 9-9:30 p.m. at the house of the victim which is village Khairbna Kala, District Kawardha. According to the victim, when she had gone to toilet and the moment she came out of the toilet, she was picked by the accused-Ashwan Sahu and Sunit Kumar Patel and forcibly taken on a motorcycle. When she was searched by her parents, she could not be found and accordingly, FIR was lodged. During the course of search being made by the parents of the victim, the name of the accused Ashwan Sahu surfaced and after the investigation and search made by the police, she is said to be recovered from the possession of the accused-Ashwan Sahu from a rented house owned by one Sewak Ram Patel, situated at Saddu, Raipur on 14.07.2019 at about 17:00 hours. 25. Dr. Hina Ahmed (PW-1) is the Doctor who had examined the victim medically. According to the report (Exhibit P/1) no external or internal injuries were found on the body of the victim. Though she has opined that intercourse was done but she has further found the hymen to be old ruptured. She has been found to be physically developed. She had advised for X-ray for age verification, ultrasonography and UPT. There is no mention as to whether any ultrasonography or UPT was done or not. 26. The victim is stated to be aged about 17 years 10 months and 28 days on the date of incident i.e. 09.07.2019. 27. She has been found to be physically developed. She had advised for X-ray for age verification, ultrasonography and UPT. There is no mention as to whether any ultrasonography or UPT was done or not. 26. The victim is stated to be aged about 17 years 10 months and 28 days on the date of incident i.e. 09.07.2019. 27. Ishwar Lal Sahu (PW-5) has deposed that police had seized the admission/discharge register (Exhibit P/9) from him and according to the said register, the victim was admitted in class III in the year 2008 but at that time, he was not posted in the said school. The victim (PW-6) has stated her date of birth to be 11.08.2001 and on the date of incident, she would have been aged about 17 years 10 months and 29 days. The Dakhil/Kharij register (Exhibit P/10C) also states the date of birth of the victim to be 11.08.2001. The class 10th mark-sheet (Article A/2) also states the date of birth of the victim to be 11.08.2021. The same date of birth is recorded in the mark-sheets of Class VIII and Class V. The radiological report (Exhibit P/35) also opines the age of the victim to be in between 17 to 18 years. 28. Though on medical examination of the accused Ashwan Sahu which is Exhibit P/20, it has been opined that the accused was a fully grown male with all well developed genitals and he was capable of sexual intercourse. He was mentally and physically fit, however, the allegation of rape does not corroborates with the FSL report as from perusal of the FSL report (Exhibit P/34), it transpires that neither any semen nor human sperm was found on Articles A, B and C which are the underwear, vaginal smear slide and pubic hair of the victim, and Article D, which is the underwear of the accused-Ashwan Sahu. 29. So far as determination of age of the victim is concerned, the learned Trial Court has placed heavy reliance on the statement of victim. The other witnesses namely Mohit Ram Sahu (PW-1) is the father of the victim, Kabit Ram Sahu (PW-3) is also relative of the victim, and Yagyeshwar Sahu (PW-7) is the uncle (Chacha) of the vitim and Ratan Sahu (PW-13) is the grandfather of the victim. The other witnesses namely Mohit Ram Sahu (PW-1) is the father of the victim, Kabit Ram Sahu (PW-3) is also relative of the victim, and Yagyeshwar Sahu (PW-7) is the uncle (Chacha) of the vitim and Ratan Sahu (PW-13) is the grandfather of the victim. Their statements have to be scrutinized with great and caution as they could be the interested witnesses being related with the victim directly. 30. The victim has narrated the incident of kidnapping and therafter sexual intercourse by the accused-Ashwan Sahu with the assistance of other accused persons in great detail before the learned trial Court. However, her statement made to the police under Section 161 Cr.P.C. is silent on many aspects though she has named all the accused persons except Sunit Kumar Patel, regarding which she stated that if she sees that person, she can identify him. 31. It is the case of the prosecution and the victim herself that she was kidnapped by the accused-Ashwan Sahu with the help of accused-Sunit Kumar Patel and thereafter she was taken to two to three places on different dates where the accused-Ashwan committed rape upon her, however, there is no explanation as to how when she was taken from one place to another, she did not ask for help from any person nor made any hue or cry. 32. Another aspect of the matter is that none of the call records of any of the accused have been exhibited by the prosecution to prove whether the appellant-Ashwan Sahu used to make calls to the victim. Had the prosecution submitted the call records of the victim as well as the accused-Ashwan Sahu, things would have been more clear as to whether there was any affair between the two. 33. From the conduct of the victim herself, it appears to be a case of elopement. Even the FSL report does not support the case of the prosecution as neither semen nor human sperm was found on the undergarments of the victim, pubic hair or the vaginal smear slides. Further, Dr. Hina Ahmad (PW-1) has opined that the hymen of the victim was old torn which may also be suggestive of the fact that she was sexually active for quite long time. 34. Accused-Ashwan Sahu is stated to be a married man with two children. He also belongs to the same community to which the victim belongs. Further, Dr. Hina Ahmad (PW-1) has opined that the hymen of the victim was old torn which may also be suggestive of the fact that she was sexually active for quite long time. 34. Accused-Ashwan Sahu is stated to be a married man with two children. He also belongs to the same community to which the victim belongs. Though the victim has denied of knowing the accused-Ashwan Sahu, however, he happens to be the Jija of Ganga Sahu, who was her friend and she was also pursuing COPA course alongwith the victim. The victim, in her deposition has stated that the SIM card which she was using in her mobile was issued in her own name which she had purchased in the year 2018 and at that time, her age of 17 years as SIM cards are not issued to minors. She has further stated that she used to get calls from unknown mobile numbers but she has not given any explanation as to why she did not inform all these to her father. Further, with regard to the photograph (Exhibit D/4) in which the victim appears to have applied Sindoor in her forehead, she had not stated anything clearly but has tried to explain that such photograph can be prepared in the computer also. 35. The prosecution has not produced the Dakhil Kharij register of the Maa Karma Vidya Mandir, Khairbnakala school in which the victim was admitted for the first time i.e. in KG-I. 36. Another interesting fact in this case is that the victim is said to have been kidnapped by accused Ashwan Sahu with the help of accused-Sunit Kumar Patel on a motor cycle. It is difficult to accept this version of the victim that two persons can carry another person and take him away on a two wheeler motor cycle. Had it been a case that she was taken in a four wheeler vehicle, things would have been different. The only possibility which appears to be in the instant case is that the victim herself accompanied the accused-Ashwan Sahu as kidnapping a young girl and taking her all through the village streets without being interrupted by any one, is hard to believe. 37. In Jarnail Singh (supra), the Supreme Court, at paragraph 23 has observed as under: “23. The only possibility which appears to be in the instant case is that the victim herself accompanied the accused-Ashwan Sahu as kidnapping a young girl and taking her all through the village streets without being interrupted by any one, is hard to believe. 37. In Jarnail Singh (supra), the Supreme Court, at paragraph 23 has observed as under: “23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 38. In the case in hand, the prosecution has not attempted to produce the Dakhil/Kharij register of the school in which the victim took admission for the first time and the Dakhil/Kharij register produced was of the subsequent school in which also, what was the basis of recording the date of birth has also not been explained. 39. When the FSL report also does not confirm commission of any sexual offence as no semen or human sperm has been found on the articles mentioned above, and the conduct of the victim herself who never made any attempt for her rescue even though she travelled from one place to another. As such, the prosecution has failed to prove its case beyond reasonable doubt against the main accused-Ashwan Sahu or any of the other accused persons. 40. In Alamelu and Another (supra), where the facts and circumstances were similar to that of this case, the Supreme Court observed as under: “51. This Court in Rameshwar vs. State of Rajasthan, AIR 1952 SC 54 , declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows: “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.” 52. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence. xxx xxx xxx 54. Even PW5, Thiru Thirunavukarasu stated that Sekar (A1) had brought the girl with him to his house and told him that he had married her. They had come to see Trichy and requested a house to stay. This witness categorically stated that he thought that they were newly married couple. He had made them stay in door no. 86 of the Police Colony, which was under his responsibility. On 10th August, 1993, the police inspector, who arrived there at 10.00 p.m. told this witness that Sekar (A1) had married the girl by threatening her and “spoiled her.” The girl, according to the prosecution, was recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A1). She did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behavior of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural. 55. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW-5, Thiru Thirunavukarasu and stayed at his place. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW-5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse. 56. In view of the aforesaid, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt any of the offences with which the appellants had been charged. It appears that the entire prosecution story has been concocted for reasons best known to the prosecution.” 41. Moreover, the victim herself has sworn an affidavit (Exhibit D/8) where she states that on the date of incident, she was a major aged about 18 years and she had gone with the accused Ashwan Sahu on her own will. She further states in the affidavit that at present, she is married and residing at her matrimonial house and they have compromised their dispute according to their social customs and she does not want prosecution against Ashwan Sahu and that he may be released on bail. The said affidavit was sworn by the victim on 27.08.2020 which has been duly proved by the statement of the Notary Jagdish Singh Thakur (DW-1). As such, the entire case of the prosecution becomes doubtful. 42. In view of the above discussion, this Court is of the considered opinion that the judgment passed by the learned trial Court needs interference and as such, the judgment of conviction and order of sentence awarded to the appellants are hereby set aside and they are acquitted of the charges. 43. Resultantly, these appeals are hereby allowed. 44. The convict/appellants Chhabilal Janghel, Itwari Janghel, Sunit Kumar Patel and Mukesh Nirmalkar are stated to be on bail. They need not surrender. However, their bail bonds are not discharged at this stage and it shall remain operative for a period of six months in view of section 437-A of the Cr.P.C. 45. The appellant-Ashwan Sahu is in jail. 44. The convict/appellants Chhabilal Janghel, Itwari Janghel, Sunit Kumar Patel and Mukesh Nirmalkar are stated to be on bail. They need not surrender. However, their bail bonds are not discharged at this stage and it shall remain operative for a period of six months in view of section 437-A of the Cr.P.C. 45. The appellant-Ashwan Sahu is in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C. the accused-appellant Ashwan Sahu is directed to furnish a personal bond for a sum of Rs. 25,000/- with two 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 Supreme Court. 46. Registry is directed to transmit the lower court record along with a copy of this order to the court concerned forthwith for necessary information and compliance.