Judgment : (Ravindra Kumar Agrawal, J.) 1. The present appeal has been filed against the impugned judgment of conviction and order of sentence dated 06.02.2020 passed by the Special Judge ( Protection of Children from Sexual Offences Act (in short POCSO Act) Sakti, District Janjgir Champa, in Special Criminal Case No.13/2015, whereby the appellant has been convicted and sentenced as under : Conviction Under Section Sentence 363 of IPC R.I. for 5 years with fine of Rs. 1000/-, in default of payment of fine, additional S.I. for six months. 366 of IPC R.I. for 5 years with fine of Rs. 1000/-, in default of payment of fine, additional S.I. for six months. 6 of POCSO Act R.I. for 10 years with fine of Rs. 1000/-, in default of payment of fine, additional S.I. for six months. All the sentences are directed to run concurrently. 2. Brief facts of the case are that, on 02.11.2014, PW-3, the father of victim lodged a missing report that her minor daughter is missing since 31.10.2014 and her whereabouts could not be traced out despite her search in nearby places and relatives house. He raised suspicion of kidnap over the appellant as there was love affair between the appellant and her daughter and appellant gifted her mobile phone through which they used to talk with each other. The police recorded offence under Section 363 IPC against the appellant vide FIR Ex. P/10. During investigation, the victim was recovered on 20.11.2014 from the possession of appellant and recovery Panchnama Ex.P/1 was prepared in presence of witnesses. The victim was sent for her medical examination to the District Hospital, Sakti where PW-14, Dr. Mamta Jagat examined her and gave report Ex.P/3. While examining the victim, the doctor did not notice any external injuries over her body and opined that victim was habitual for sexual contact. Two slides of her vaginal swab were prepared, sealed and handed over to the police for chemical examination. The underwear of victim was seized vide Ex. P/4. Spot map Ex.P/12 was prepared by the police whereas Ex.P/14 by the Patwari. With respect to age and date of birth of the victim, the police seized school register from Primary School, Garhgodi and after retaining its attested true copy Ex.P/35-C, the original register was returned back to school. A certificate issued by the Headmaster of said school has also been seized vide Ex.P/34. With respect to age and date of birth of the victim, the police seized school register from Primary School, Garhgodi and after retaining its attested true copy Ex.P/35-C, the original register was returned back to school. A certificate issued by the Headmaster of said school has also been seized vide Ex.P/34. The appellant was arrested on 21.11.2014 and he too was sent for his medical examination to Community Heath Centre, Sakti, where PW-9 Dr. P. Singh examined him found him capable to perform sexual intercourse. The vaginal slides of the victim, her underwear as well underwear of appellant were sent for chemical examination to State FSL, Raipur. 3. Statement of witnesses under Section 161 of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for the offence under Sections 363 , 366, 376 IPC and Section 6 of POCSO Act before the learned Trial Court. 4. The learned trial court has framed charge under Sections 363 , 366 IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 5. In order to bring home the charge, the prosecution has examined as many as 14 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appears against him, pleaded innocence and submitted that he has been falsely implicated in the offence. 6. After appreciation of the oral as well as the documentary evidence led by the prosecution, the trial court has convicted and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence. The prosecution has failed to prove their case beyond reasonable doubt. There is no cogent and legally admissible evidence available on the record to show that the victim was minor and less than 18 years of age on the date of the incident. The school record has not been proved by the prosecution in accordance with law. The basis on which the entries have been made in the school record have not been produced. The school record has not been proved by the prosecution in accordance with law. The basis on which the entries have been made in the school record have not been produced. No other documents like the Kotwari register, birth certificate or ossification test report have been filed by the prosecution to determine her age, and therefore the finding recorded by the trial court that on the date of the incident the victim was minor is erroneous. He would further argue that the victim was major and having love affair with the appellant and she herself on her own free will eloped with appellant and made consensual physical relation with him. While going with appellant, she has not raised any alarm and did not make any complaint to anyone. She has not protested at the time of alleged offence of making forceful sexual intercourse. No injuries have been found on the body of the victim. When the victim was found to be major and she herself eloped with the appellant and engaged in making physical relation with him without any objection or protect, no offence either of kidnapping or rape, is made out against the appellant and thus he is entitled for acquittal. 8. On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted that the victim was minor and below 18 years of age at the time of incident which is proved by the school record. School record is admissible piece of evidence which has been proved by PW-12, who is incharge Headmaster of the School and from the school record, the victim was found to be minor on the date in incident and her consent is immaterial. The evidence of victim need not be required for any corroboration and on the sole testimony of the victim, the conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial court. Although no injuries were found on her body, however, that itself is not sufficient to disbelieve the prosecution’s case as in every case there is no necessity that victim must have received injuries. It depends upon facts of each case. Minor victim was kidnapped by the appellant and kept her away from her lawful guardianship and has made physical relation with her which does amount to offence of rape. It depends upon facts of each case. Minor victim was kidnapped by the appellant and kept her away from her lawful guardianship and has made physical relation with her which does amount to offence of rape. Therefore, the impugned judgment of conviction and sentence needs no interference. 9. I 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 or not? 11. The prosecution has mainly relied upon the school register Ex.P/35-C, certificate issued by the Headmaster of the school Ex.P/34 and her 9 th Class marksheet. The school record Ex.P/35-C and P/34 are sought to be proved by P.W-12, Surendra Bahadur Singh, who is incharge Headmaster of the School. He has stated in his evidence that he is incharge Headmaster since 2009. The police seized school register with respect to date of birth of victim. He has brought the original register with him, according to which the date of birth of victim is 22.11.1998 and on the basis of said school register, he issued the certificate Ex.P/34. In cross examination, he admits that he is not the author of school register Ex.P/35. He also admits that birth certificate of victim is not annexed along with school register. He further admits that since he was not posted in the year 2005 in the school, he could not tell as to what were the documents on the basis of which her date of birth was recorded in the school register. From the evidence of this witness it appears that he is not the author of school register and the basis on which her date of birth is recorded in the school register has not been produced. When necessary documents required to prove truthfulness of school record has not been produced by the prosecution, the same cannot be taken into consideration to determine the age of victim. 12. In the matter of Alamelu and Another Vs. When necessary documents required to prove truthfulness of school record has not been produced by the prosecution, the same cannot be taken into consideration to determine the age of victim. 12. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police , 2011 (2) SCC 385 , which is in respect of admissibility of school records of a person, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. 13. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "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. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 14. In case of Rishipal Singh Solanki Vs. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602 , while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- 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. 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." 15. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police , 2023 (SCC Online) SC 846 , Hon'ble Supreme Court has held in para 14 to 17 as under : "14. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police , 2023 (SCC Online) SC 846 , Hon'ble Supreme Court has held in para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (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. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference." 16. Reverting to the facts of the present case, the victim PW-1 have not disclosed her date of birth. She only disclosed that she is aged about 17 years. In cross examination, she has stated that her date of birth is 22.11.1998. Her father got her admitted in the school and she did not know as to whether her date of birth is recorded in the school register after adding or reducing her actual age. 17. PW-3 is the father of victim, who too have not disclosed any date of her birth and have stated that victim was aged about 16 years at time of incident. 18. PW-4 is the mother of victim. She also have not disclosed date of birth of victim and have stated that she was aged about 17 years. 19. The victim herself have not disclosed her date of birth in her examination in chief and in cross examination though she disclosed her date of birth, but she did not know as to whether the said date of birth was correct or not. Her parents also have not disclosed any date of birth of victim. Her father said victim was aged about 16 years whereas, her mother said the age of victim about 17 years at the time of incident. Therefore, in such a situation where the basis on which the date of birth of victim was recorded in school register have not been produced; the author of the school register have not been examined; the parents of victim were unable to disclose the actual date of birth of victim, it cannot be said that victim was minor and less than 18 years of age on the date of incident. 20. 20. So far as the allegation of kidnapping and rape is concerned, P.W-1, the victim, have stated in her evidence that on 30.10.2014 at about 3:30 AM in the night she was being called by the appellant. When she went to Temple of village, the appellant took her with him. Both of them went to Sakti by walking thereafter they went to Bilaspur by train. From Bilaspur bus stand, they went to village Kargikala in the house of sister of appellant where they stayed for about two days. Thereafter, they came to the house of sister in law of appellant at Bilaspur and thereafter to village Rumgada (Lakhanpur) where the appellant made physical relation with her. On the date of 19 th , her parents came to village Rumgada and took her back. She informed the incident to her parents and then police proceeding was drawn. In cross examination, she states that she went to the village of her maternal grandmother where she met with appellant and since then their love affair continues. She admits that appellant gifted her a mobile phone through which they regularly made conversation with each other. She admits that when she was in conversation with the appellant, she was seen by her family members and her parents scolded her and she had to inform about their love affair to her parent. She further admits that she herself had called the appellant by mobile phone. She on her own will had gone at about 3:30 in the night to meet the appellant. Since the appellant allured her that they will visit Kanan Pandari, she had gone on her own will with him. Firstly they went to sister’s house of appellant and next date they visited Kanan Pendari. They returned back to sister’s house of appellant and thereafter they went to Bilaspur in the house of sister in law of the appellant and ultimately to village Rumgada. She further states that she has not raised any alarm or made complaint to anyone to fellow passenger of bus by which they proceeded for Bilaspur. Even she has not made any complaint to anyone while travelling with the appellant at Bilaspur or up to village Rumgada where she stayed from 4 th to 19 th and in between that period they made physical relation for 4-5 times. Even she has not made any complaint to anyone while travelling with the appellant at Bilaspur or up to village Rumgada where she stayed from 4 th to 19 th and in between that period they made physical relation for 4-5 times. She further admits that appellant never made any pressure upon her for making physical relation. She states that other family members were also there in the house where they stayed at village Rumgada, but she did not make any complaint to anyone that she has been kidnapped by the appellant. She states that she has not informed the incident to her parents immediately when her parents came there, but informed about the incident when she was taken to police station. She was not in favour of lodging report against the appellant, but her maternal aunt (Bua) and maternal uncle (Fufa) pressurized her to lodge report. They also convinced about the statement to be given by her before the authority concerned. 21. From the evidence of this witness, it is quite clear that the victim was in love affair with the appellant. She on her own will left her house at about 3:30 AM in the night, accompanied with the appellant and visited various places and ultimately went to village Rumgada where they stayed for about 15 days and made consensual physical relation. Though other family member were present in the said house, but she did not raise complaint to anyone. There is no evidence of the victim that at any point of time she resisted or protested to go with the appellant or refused from making physical relation with him. Rather, she herself on her own will eloped with him and engaged in making consensual physical relation without any protest which clearly shows her willingness and consent in eloping with the appellant and making physical relation consensually. 22. PW-3, the father of victim, have stated that when the victim was not found in his house and could not be traced out even in nearby places, he lodged a missing report. During her search, they came to know that appellant and victim have eloped, then they went to village Charpara and with the help of police persons, the victim could be recovered from village Rumgada. The victim have not disclosed any incident in his presence, but disclosed to his wife and thereafter his wife disclosed him about the incident. During her search, they came to know that appellant and victim have eloped, then they went to village Charpara and with the help of police persons, the victim could be recovered from village Rumgada. The victim have not disclosed any incident in his presence, but disclosed to his wife and thereafter his wife disclosed him about the incident. In cross examination, he admits the fact that he was in knowledge that appellant gifted a mobile phone to his daughter by which she regularly used to talk with him. He admits of snatching that mobile phone and also the fact of scolding her not to talk with him. When the victim was missing, after about two days he got a photograph of appellant and victim together in a photo studio and then they started searching of appellant also and came to know that both of them eloped. 23. PW-4 is the mother of victim, but she is only witness to the effect that her daughter was missing and ultimately she was recovered from the possession of the appellant. She states that she neither asked from her about the incident nor she disclosed her about any incident. She was declared hostile and not supported the case of prosecution. 24. PW-14, Dr. Mamta Jagat, who medically examined the victim on 21.11.2014 have not noticed any external injuries on her body and found the victim habitual to sexual intercourse. She also opined that there is no sign of forcible sexual intercourse with her. The prosecution has also not produced any FSL report showing presence of semen and sperms on the vaginal swab of victim. 25. All these evidences would clearly demonstrate that prosecution has failed to prove its case beyond reasonable doubt against the appellant. Further, the act of the victim dragged us to draw a conclusion that victim was consenting party in eloping and making physical relation with the appellant. The victim herself eloped with the appellant and stayed with him for about 15 days and engaged in making consensual physical relation with him without any protest or resistance. From the evidence of father of victim also, love affair between appellant and victim stands proved. Thus, it cannot be said that victim was kidnapped and subjected to rape by the appellant. 26. In the case of S. Varadarajan Vs. From the evidence of father of victim also, love affair between appellant and victim stands proved. Thus, it cannot be said that victim was kidnapped and subjected to rape by the appellant. 26. In the case of S. Varadarajan Vs. State of Madras , AIR 1965 SC 942 the Hon’ble Supreme Court has held that: - “ 9. It must however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code . We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined 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 fulfilment of the intention of the girl. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.” 27. 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. 28. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 29. Considering the entire evidence available on record, the evidence with regard to age and conduct of the victim, we are of the opinion that the prosecution has failed to prove that victim was less than 18 years of age at the time of the incident. Further, she was a consenting party with the appellant in making physical relation with him. Therefore, in the above facts and circumstances of the case, no any offence as alleged is made out against the appellant. 30. For the foregoing reasons, the appeal is allowed . The impugned judgment of conviction and sentence is hereby set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 06.02.2020. He be released forthwith if not required in any other case. 31. Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the appellant is directed to forthwith furnish a personal bond of the sum of Rs. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 06.02.2020. He be released forthwith if not required in any other case. 31. Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the appellant is directed to forthwith furnish a personal bond of the sum of Rs. 25,000/- with one reliable surety in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 32. The trial court records along with a copy of this judgment be sent back to the trial court concerned for compliance and necessary action.