Birka Shiva vs. The State Of Telangana

2025 INSC 863

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPEAL NO. OF 2025
(Arising out of SLP(Crl.) No. 1445 of 2025)


BIRKA SHIVA …APPELLANT(S)

Versus

THE STATE OF TELANGANA …RESPONDENT(S)



J U D G M E N T




SANJAY KAROL, J.


Leave Granted.
2. The present appeal arises from the final judgment and
th
order dated 26 June 2024 passed by the High Court for the State
of Telangana at Hyderabad in Criminal Appeal No.384 of 2018,
Signature Not Verified
Digitally signed by
NAVEEN D
Date: 2025.07.16
18:11:56 IST
Reason:
th
which confirmed the judgment and order dated 29 January 2018
Crl.A. @ SLP(Crl.) 1445/2025 Page 1 of 28


passed by the Court of the Special Sessions Judge for Fast
Tracking the Cases relating to Atrocities Against Women at
1
Karimnagar, in Sessions Case No.284 of 2014, whereby the
2
Appellant-convict, Birka Shiva , was convicted under Sections
3
376, 363, and 342 of the Indian Penal Code, 1860 . However,
while upholding the order of conviction passed by the Trial
Court, the High Court vide the impugned judgment, and order
reduced the sentence awarded to the appellant and modified the

sentence in the following manner:

3. The prosecution case as emerging from the record, as also
set out by the Courts below, is as follows:
3.1. The appellant, a friend of PW-4 ( victim's brother ),
was a regular visitor to the house of PW-1 ( victim's mother ).
During such visits, he came in contact with the victim (PW-
st
3), who was pursuing 1 year of her graduation.

1
Hereinafter referred to as the 'Trial Court.'
2
Hereinafter referred to as the ‘appellant’
3
Hereinafter referred to as ‘IPC’
Crl.A. @ SLP(Crl.) 1445/2025 Page 2 of 28


th
3.2. On the morning of 4 August 2012, the appellant
took the victim to Peddapalli, and from there to Hyderabad,
where he tied a ‘ pasupukommu ’ (turmeric thread) around
her neck, thereby creating an impression that they were
married. The appellant then confined the victim in a room at
Shadnagar, Hyderabad, and they started residing together as
a couple, subjecting her to sexual intercourse, away from the
parental home of the victim.
th
3.3. On 8 August 2012, when the victim was
untraceable, her mother (PW-1) lodged a missing
complaint. Based on the said complaint, a case was
registered as FIR No.85 of 2012 at PS Godavarikhani – II
Town, District Karimnagar, under Section 366(A) of the
IPC. PW-1 alleged that the appellant had lured and induced
the victim and taken her away to some unknown place by
taking the opportunity of her innocence.
th
3.4. On 12 October 2012, when the appellant sustained
injuries in a motorcycle accident, he was admitted to the
hospital at Karimnagar. At that time, the victim came to her
mother (PW-1) and narrated the ordeal to her family.
3.5. Upon her return, the victim's statement was
recorded, and based on her statement, Sections 342, 376,
and 366 of the IPC were added. The victim was also
examined by a doctor (PW-8), who took vaginal swabs and
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sent them to the Regional Forensic Science Laboratory
(RFSL), Karimnagar. After the surrender of the appellant,
a potency test was conducted by a doctor (PW-9), who
issued a certificate stating that the appellant was potent to
commit a sexual act.
3.6. After completing the investigation, chargesheet
th
dated 30 January 2013 came to be submitted before the
Judicial First Class Magistrate at Manthani, who committed
the case to the Sessions Division at Karimnagar. The case
was initially taken on file by the Sessions Court as S.C.
No.284 of 2014 and then assigned to the Assistant Sessions
Judge, Manthani. Charges under Sections 366(A), 342, and
376 of IPC were framed against the appellant, to which he
pleaded not guilty and claimed trial. The case was
subsequently transferred to the Special Court.
3.7. To bring home the guilt of the appellant, the
prosecution examined 13 witnesses and exhibited 11
documents. On behalf of the defence, Ex.D1, being a
contradiction in the statement of victim (PW-3) recorded
under Section 161 of the Code of Criminal Procedure,
4
1973 , was marked. The details of the prosecution witnesses
are summarised below :


4
‘CrPC’ for short
Crl.A. @ SLP(Crl.) 1445/2025 Page 4 of 28

4. The Trial Court, after elaborate consideration, vide
th
judgment and order dated 29 January 2018, convicted the
appellant under Sections 363, 342, and 376 of IPC; however,
acquitted him in relation to the offence committed under Sections
366(A) or 366 IPC. The Court gave the following findings:

5
Name redacted as per the direction in Nipun Saxena v. Union of India, (2019) 2 SCC
703
6
‘I.O.’ for Short
Crl.A. @ SLP(Crl.) 1445/2025 Page 5 of 28


(i) Upon consideration of the testimonies of PW-1 to
PW-5, no circumstances are elicited to discredit their
testimony that PW-3 had been missing from her parental
th
house since 4 August 2012. PW-1 to PW-4 confirmed the
friendship between the appellant and PW-4, as well as the
appellant's frequent visits to their house.

(ii) PW-3 (victim) categorically deposed that the
appellant took her away from her parent's house to
Hyderabad, where she was confined at the home of PW-5
for nearly two months. Her evidence also shows that the
appellant had sexual intercourse with her.
(iii) The contradictions in Ex.D1, i.e., the statement of
PW-3 recorded under Section 161 CrPC, was not proved by
the defence in the cross-examination of the Investigation
Officer concerned. Even if it is accepted, it would merely
show that the appellant took the victim from her house, not
discrediting the core allegation.
(iv) Prosecution produced Ex.P11 ( date of birth
rd
certificate ) which clearly shows that PW-3 was born on 3
November 1996, a fact which was recorded in the records
th
of Zilla Parishad High School, where she studied from 6 to
th
10 Class. Therefore, as of the date of the offence, the
victim was under 16 years of age.
Crl.A. @ SLP(Crl.) 1445/2025 Page 6 of 28


(v) Considering the total circumstances, charges under
Section 376 (rape), Section 363 (kidnapping), and Section
342 (wrongful confinement) were proved beyond a
reasonable doubt. However, since the facet of forced
marriage or seduction was not established, the appellant was
acquitted under Sections 366 or 366(A) IPC.

5. Aggrieved by the said order of conviction, the appellant
preferred an appeal before the High Court for the State of
Telangana at Hyderabad, which vide the impugned judgment and
th
order dated 26 June 2024 confirmed the conviction of the
appellant, but however, modified the sentence awarded as set
forth in Paragraph 2. The relevant extract of the High Court
judgment is as follows:

"6. P.W.1 is the mother, P.Ws.2 and 4 are the brothers
of the victim, P.W.3. In order to prove the age of the
victim the prosecution produced Ex.P11 the date of birth
certificate. As per Ex.P11 the date of birth of the victim
is 03.11.1996 and she was aged only below 16 years at
the time of incident. P.W.3 in his cross-examination has
categorically admitted that she did not state to police that
the accused forcibly kidnapped her and her evidence
does not reveal that the accused used any force on her
for having sexual intercourse. However, since she was
aged below 16 years in view of the definition of rape
under Section 375 of IPC having sexual intercourse with
a woman aged below 16 years with or without her
consent amounts to rape. Apart from that the evidence of
P.W.3 clearly established that the accused took away her
to Hyderabad and confined in the house of P.W.5 and
enjoyed her sexually. It is now well established that if
the Court is satisfied from the evidence of the victim, a
conviction can be solely based on such evidence without
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looking for further corroboration. Same can be done
because the prosecutrix is no more treated as an
accomplice in the crime. An accused cannot cling to a
fossil formulae and insist on corroborative evidence,
even if taken as a whole, the case spoken to by the victim
strikes a judicial mind as probable. Judicial response to
human rights cannot be blunted by legal jugglery.
Therefore, considering the evidence of P.W.3 the trial
Court has rightly convicted the accused for the offences
under Sections 376, 363 and 342 of I.P.C."

(Emphasis Supplied)

6. Still aggrieved, the Appellant-convict, pleading his
innocence, is before us, challenging his conviction and sentence,
as referred to supra . We have heard learned counsel for the
parties and also perused the material on record. The issues that
arise for our consideration are:
(a) Whether the prosecution has established
beyond reasonable doubt that the victim (PW-1) was
a minor (under sixteen/eighteen years of age) as on
th
the date of the alleged incident, i.e., 4 August 2012;

(b) Whether the appellant lured or enticed the
victim away from the lawful guardianship of her
parents without their consent, thereby committing the
offence of kidnapping under Section 363 of IPC;

(c) Whether the appellant wrongfully confined
the victim and prevented her from moving in any
direction out of her volition; and


Crl.A. @ SLP(Crl.) 1445/2025 Page 8 of 28


(d) Whether the appellant forcefully had a
physical relationship with the victim to constitute
rape under Section 376 of IPC.

OUR VIEW

A) Age of the Victim/Prosecutrix

7. The prosecution has relied primarily on Ex.P11, the birth
certificate issued by the Zilla Parishad High School, to establish
that the victim was below the age of sixteen years on the date of
th
the alleged offence, i.e., 4 August 2012. According to Ex.P11,
rd
the victim's date of birth was 3 November 1996, which, if
accepted, would make her approximately 15 years 9 months old
at the relevant time.

8. The evidentiary value of such an entry made in public or
official registers may be admissible in evidence under Section 35
7
of the Indian Evidence Act, 1872 . However, admissibility is
distinct from probative value. While such documents may be
admitted into evidence, their evidentiary weight depends on
proof of their authenticity and the source of the underlying
information. Mere production and marking of a document as
exhibited by the Court does not amount to proof of its contents.
Its execution has to be proved by leading substantive evidence,
that is, by the ‘ evidence of those persons who can vouchsafe for

7
Hereinafter referred to as the ‘Evidence Act’
Crl.A. @ SLP(Crl.) 1445/2025 Page 9 of 28


the truth of the facts in issue ’. [See: Narbada Devi Gupta v.
8
Birendra Kumar Jaiswal ] We may refer to a few judicial
pronouncements of this Court in this regard:
8.1. This Court, in Birad Mal Singhvi v. Anand
9
Purohit , held that the entries contained in the school
register are relevant and admissible but have no probative
value unless the person who made the entry or provided the
date of birth is examined. It was observed:

8
(2003) 8 SCC 745
9
1988 Supp SCC 604
Crl.A. @ SLP(Crl.) 1445/2025 Page 10 of 28

(Emphasis Supplied)

This decision has been consistently followed by this Court
10
in Pratap Singh v. State of Jharkhand ; Babloo Pasi v.
11 12
State of Jharkhand ; Murugan v. State of T.N. ; State of
13
M.P. v. Munna ; C. Doddanarayana Reddy v. C.
14
Jayarama Reddy ; and Manak Chand v. State of
15
Haryana .
8.2. A coordinate Bench of this Court in State of
16
Chhattisgarh v. Lekhram , through S.B. Sinha, J., clarified
that though entries in school registers are admissible under

10
(2005) 3 SCC 551
11
(2008) 13 SCC 133
12
(2011) 6 SCC 111
13
(2016) 1 SCC 696
14
(2020) 4 SCC 659
15
2023 SCC OnLine SC 1397
16
(2006) 5 SCC 736
Crl.A. @ SLP(Crl.) 1445/2025 Page 11 of 28


Section 35 of the Evidence Act, their evidentiary value
improves only when corroborated by oral testimony of
persons who are aware of its content, such as parents or the
person who made the entry at the time of admission. It held
as under:

8.3. Similarly, this Court in Satpal Singh v. State of
17
Haryana , stated that though a document may be
admissible, but to determine whether the entry contained
therein has any probative value, may still be required to be
examined in the facts and circumstances of a particular case.
It held as follows:

17
(2010) 8 SCC 714
Crl.A. @ SLP(Crl.) 1445/2025 Page 12 of 28

x x x

18
8.4. In Madan Mohan Singh v. Rajni Kant , this Court
held that the entries made in the official record may be
admissible under Section 35 of the Evidence Act, but the
Court has a right to examine their probative value. The
authenticity of the entries would depend on whose

18
(2010) 9 SCC 209
Crl.A. @ SLP(Crl.) 1445/2025 Page 13 of 28


information such entries stood recorded. It was held as
follows :

“ 20. So far as the entries made in the official record by
an official or person authorised in performance of
official duties are concerned, they may be admissible
under Section 35 of the Evidence Act but the Court has
a right to examine their probative value. The authenticity
of the entries would depend on whose information such
entries stood recorded and what was his source of
information. The entries in school register/school
leaving certificate require to be proved in accordance
with law and the standard of proof required in such cases
remained the same as in any other civil or criminal cases.
21. … For determining the age of a person, the best
evidence is of his/her parents, if it is supported by
unimpeachable documents. In case the date of birth
depicted in the school register/certificate stands belied
by the unimpeachable evidence of reliable persons and
contemporaneous documents like the date of birth
register of the Municipal Corporation, government
hospital/nursing home, etc., the entry in the school
register is to be discarded. …”

19
8.5. This Court, in Alamelu v. State , while dealing with
a similar factual matrix, held that the prosecution had failed
to prove that the girl was a minor at the relevant date since
the transfer certificate of a Government School showing age
was not duly proved by witnesses. It observed as under:

“ 40. Undoubtedly, the transfer certificate, Ext. P-16
indicates that the girl's date of birth was 15-6-1977.
Therefore, even according to the aforesaid certificate,
she would be above 16 years of age (16 years 1 month

19
(2011) 2 SCC 385
Crl.A. @ SLP(Crl.) 1445/2025 Page 14 of 28


and 16 days) on the date of the alleged incident i.e. 31-
7-1993. 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 Evidence Act, 1872.
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.

41. We may notice here that PW 1 was examined in the
Court on 9-8-1999. In his evidence, he made no
reference to the transfer certificate (Ext. P-16). He did
not mention the girl's age or date of birth. PW 2 was also
examined on 9-8-1999. She had also made no reference
either to her age or to the transfer certificate. It appears
from the record that a petition was filed by the
complainant under Section 311 CrPC seeking
permission to produce the transfer certificate and to
recall PW 2. This petition was allowed. … In her cross-
examination, she had merely stated that she had signed
on the transfer certificate, Ext. P-16 issued by the school
and accordingly her date of birth was noticed as 15-6-
1977. She also stated that the certificate has been signed
by the father as well as the Headmaster. But the
Headmaster has not been examined. Therefore, in our
opinion, there was no reliable evidence to vouchsafe for
the truth of the facts stated in the transfer certificate.”

(Emphasis supplied)

9. In the attending facts, we find that the evidentiary value
of Ex.P11 is significantly undermined in the absence of
corroborating material. We say so for the following reasons:
Crl.A. @ SLP(Crl.) 1445/2025 Page 15 of 28


(i) PW-13, who is the Headmaster of Zilla Parishad
High School, Chandanapur, Peddapalli District ( erstwhile
Karimnagar District ), stated that the victim studied in his
th th
school from 2007 to 2013, i.e., 6 Class to 10 Class and
rd
that the Admission Register records her date of birth as 3
November 1996. However, in his cross-examination, he
admitted that he had no personal knowledge as to the source
or basis on which the date of birth was recorded therein or
if the recorded date of birth was correct or not. The relevant
part of his testimony is extracted hereunder:

“…In our school there is not clerk to maintain records. I
did not produce any certificate pertaining to earlier
school I, In which P.W.3 studies up to 5th Class. There
must be basis for entering date of birth of a student in our
school such as her earlier school record. I do not have
personal knowledge as to what record was produced by
parents of P.W. 3 as basis to enter her date of birth in our
school as I was not Head Master in 2007.

I cannot say in which school P.W.3 studied up to 5th
Class. In the nominal roll register of our school, the
signature of P.W.3 was obtained. I do not have personal
knowledge whether the said date of birth of P.W.3 was
correct or not and I am giving evidence only on the basis
of record.”

(Emphasis Supplied)

(ii) The prosecution has failed to examine the person
who had made the entry in the Admission Register to
ascertain on what basis such an entry was made. More so,
Crl.A. @ SLP(Crl.) 1445/2025 Page 16 of 28


the entry in respect of the date of birth of the victim in the
st th
primary school register, i.e., 1 Class to 5 Class, has not
been produced and proved before the Courts below to verify
the age as per its records. It is also not possible to ascertain
from the records as to whether the date of birth was provided
by the parents or simply entered at the behest of another
party, without verification, at the time of admission to Zilla
Parishad High School.
(iii) The testimonies of PW-1, PW-2 and PW-3 are also
telling that none of them mentioned the victim's age with
specificity. There is no reference to Ex.P11, and no attempt
was made by the prosecution to adduce corroborative
testimony regarding the victim's date of birth from her
family members.
Thus, while examining the issue at hand, on the anvil of the
principles elucidated above, it is essential to notice that the
prosecution has failed to toe the line of legal requisites. There is
nothing on record to corroborate the date of birth of the victim as
recorded in the birth certificate (Ex.P11) issued by the school.
Therefore, it cannot be relied upon to definitely determine the age
of the victim and held with certainty that the victim was below
sixteen/eighteen years of age.
10. All three of the I.Os. are curiously silent on the aspect of
age of the alleged rape victim. This, in itself, raises credible
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questions about the investigation since a charge of rape is
involved in which the age of the victim is an essential factor.
PW-11, the I.O. who registered the FIR, categorically states that
the mother (PW-1) and brothers (PWs 2 and 4) of the victim did
not give him particulars of her year of birth and age. PW-12, who
rd
was the 3 I.O., in his cross-examination admitted to not having
pursued the aspect of the victim's age sufficiently. The relevant
portion of his testimony is as under:

“As per Ex.P1 complaint P.W.3 was studying in S.R.K.
Junior college, Godavarikhani. I have not visited the said
college. I did not examine her classmates to enquire as
to how P.W.3 was going to college. I did not enquire as
to the birth place of P.W.3. It is true every
Grampanchayath will maintain births and deaths
register. I did not verify whether the date of birth of
P.W.3 was got registered in the Grampanchayath. I did
not enquire as to where P.W.3 completed her primary
education. I did not investigation as to who got filled in
the form of admission of P.W.3 in the school.”


11. Furthermore, none of the victim's family members, i.e., her
mother and brothers have said anything about the age of the
victim in their depositions made in the Court. Even the victim is
effectively silent on this aspect, only stating that she and her
siblings were born approximately two years apart and thereby
making an estimation of their ages as well as her own.
Throughout her deposition, the victim has remained silent with
regard to her particular date of birth.
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12. Well, suffice it to say that Courts of law cannot make a
determination of guilt in thin air, based on estimations. In the
present facts and circumstances, the proof submitted by the
prosecution in the form of Ex.P11 ( birth certificate issued by the
school ) was not sufficient to arrive at a finding that the
prosecutrix was less than sixteen/eighteen years of age,
especially when such a document was not sufficiently
corroborated. Therefore, it was neither safe nor fair to convict
the appellant based on it, particularly in the context where the age
of the victim was such a pivotal factor.

B) Kidnapping from Lawful Guardianship/
Wrongful Confinement

13. The prosecution has alleged that the appellant lured the
victim away from her lawful guardianship with the intent to
sexually exploit her, thereby attracting the offence under Section
363 IPC. Further, it is alleged that she was wrongfully confined
by the appellant for a period of approximately two months in a
house, reportedly owned by PW-5 amounting to offence
punishable under Section 342 IPC. However, on a close scrutiny
of the evidence, we find the claim to be wholly unsubstantiated
and improbable.
14. From the record, it is unrefutably clear that the appellant,
being a friend of PW-4, was in constant contact with the victim
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since he was a regular visitor at her parental house. PW-2
categorically states that – ‘ the accused is friend my brother Sajan
Kumar. Accused Shiva used to come to my house daily.’ The
victim herself corroborated this in her examination-in-chief by
acknowledging that her acquaintance with the appellant arose
from his regular visits to her home.

15. To sustain a charge of kidnapping from lawful
guardianship, the essential ingredients that must be satisfied
include – (i) taking or enticing a minor ( under 18 years of age if
female ); (ii) from the lawful guardianship of her parents or
guardians; and (iii) without their consent. However, the victim's
own deposition does not demonstrate that the appellant forcibly
removed or enticed her from the guardianship of her parents with
deceit or inducement. She admits to having voluntarily
th
accompanied the appellant on a motorbike on the morning of 4
August 2012 and having resided with him for nearly two months.
Furthermore, there is an unexplained delay of four days in
lodging the missing report. The victim was reportedly missing
th
since the morning of 4 August 2012, yet, the FIR was registered
th
only on 8 August 2012. Neither the mother (PW-1) nor the
brothers (PWs 2 and 4) of the victim offered any credible
explanation for such a delay. This silence in the face of the
alleged kidnapping raises legitimate doubts over the genesis of
the prosecution’s case.
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16. Turning now to the charge under Section 342 IPC, which
penalises wrongful confinement, it must be established that the
accused voluntarily obstructed the victim in such a manner as to
prevent her from proceeding beyond certain circumscribed
limits. The testimony of the victim (PW-3) indicates that she
resided with the appellant for nearly two months. Notably, what
is absent from the record is any assertion that she was physically
restrained, or her movements were restricted. The victim admits
that the appellant left daily for work and that she remained alone
at the residence. Finally, it is suggested that the appellant used to
put a lock on the main door of the house. But this version appears
to be just an afterthought and not correct. For, there is no
indication that she attempted to flee, contact neighbours, or
otherwise signal her unwillingness to stay in that house. This
conduct stands in stark contrast to what one might expect of a
person wrongfully confined against his/her volition. For ready
reference, the relevant part of the statement of the victim is
extracted hereunder:

“Chief Examination :

P.W.1 is my mother, P.W.2 Raju and Sajjan Kumar are
my brothers. On the date of incident I am studying inter
1st year at S.R.K. college, Godavarikhani. On
04.08.2012, I went to college in the morning. The
accused came to the college and also said that he will
marry me and took me to Shadnagar of Hyderabad by
bike and kept me in one house. Accused is working as
employee in Gas Cylinder Company at Hyderabad.
Crl.A. @ SLP(Crl.) 1445/2025 Page 21 of 28


Accused me in the house locked the house, and went to
the gas company for attending duties. Accused had
sexual intercourse with me at Hyderabad. I was present
in the house and locked the house and went to gas
company for attending duties. Accused had sexual
intercourse with me at Hyderabad. I was present in the
house at Hyderabad for a period of two months. After
two months accused met with an accident and admitted
in a hospital at Secundrabad and thereafter he was
shifted to Karimnagar by their parents. The brother-in-
law by name Kumar came to Hyderabad along with
others and took me to police station. Godavarikhani-II
Town P.S. B incline colony. The police shifted me to
hospital. I know the accused through my brother my
name Sajjan Kumar. Hence, I got acquittance with him.
The accused used to came to my parents house regularly.
I can identify the accused who was present in the court
hall. Police examined me.

Cross examination by Sri S. Bhasker Reddy. Advocate
for the accused.

…My brother and mother came to P.S. when I was
present at P.S. I was present at Secundrabad hospital for
two days and also I came to Karimnagar hospital, again
I went to P.S. I have not stated before the police about
the said fact. It is not true to suggest that the police did
not record my statement. I have not stated before the
police about the location and name of the temple. The
witness says I stated before the police that the accused
married me. I do not know the name of the gas cylinder
company. The doors were closed when the accused was
present in the house. It is not true to suggest that there is
a possibility for escaping from the house as well as to go
to outside for contact through phones. I never talked with
the neighbours.






Crl.A. @ SLP(Crl.) 1445/2025 Page 22 of 28


Dt. 26.6.2015 witness recalled, sworn for further cross-
examination

Cross-exam for accused, Sri S.B.R. Adv.,

It is true there is no mentioned in my 161 CrPC
statement that how much period I am having
acquaintance with the accused. It is true in my 161 CrPC
statement there is no mentioned that the accused
forciblykidnappedme. It is true I never mentioned the
company and its motor cycle number. It is true I never
mentioned that accused went to my college that I stated
he intended to marry me. It is true that I never mentioned
in my chief examination, that the accused locked in
room. It is not true to say that I never mentioned in my
161 statement the place of accident at Hyderabad. My
elder brother is 22 yrs, my mother’s brother is age 20
years, It is not true to say that there is gap of 2 yrs for
every child begotten by the Mother. My date of birth is
recorded in O.P. records. I produced my original in inter
college. It is not true to say that I never accompanied
with the accused on a motor cycle in Hyderabad. It is not
true to say that I was not kept at Hyderabad by the
accused.

It is not true to say that I never performed family affairs
at Hyderabad. It is not true to say that I was not taken to
Hanuman Temple and I got married. I did not produced
any recording of marriage of temple to the Police
Authority. It is not true to say that my marriage was not
effected since no registration was at temple…”

Upon reading the above, it becomes evident that the victim
cohabited with the appellant for a considerable duration without
asserting that her presence was coerced, manipulated, or forced
through threats or deceit. It was only when the appellant met with
th
an accident on 12 October 2012 and was hospitalised, that the
victim returned home. Even when the appellant was hospitalised,
Crl.A. @ SLP(Crl.) 1445/2025 Page 23 of 28


the victim stayed with him for two days at the hospital. These
circumstances strongly suggest that the victim was not staying
with the appellant against her own volition or will. We further
find the narrative provided by her during the trial, to be
improvised from her earlier statement recorded by the Police
under Section 161 CrPC, which reads as:

“CASE DAIRY PART-II
PS GDK -II TOWN District: KARIMNAGAR

FIR No. 85 / 2012 Date of examination: 17.10.2012

20
STATEMENT OF XXX , 16 YEARS, GOLLA,
st
STUDENT INTERMEDIATE 1 YEARS R/O
SINGIREDDYPALLI

I, am a resident of Singireddypalli, I am studying in S.R.K.
st
Junior College, Godavarikahani in Intermediate 1 year,
Birka Shiva S/o Madunaiah, 25 years, Tenugu is friend of my
second elder brother Sajjan and he used to visit my house now
and then for my brother and thus he was moving closely with
me and he informed that he is in love with me and told that he
will marry me, on 04.08.2012 in the morning hours he came
to my house and took me on his motorcycle to Hyderabad and
kept me in a house at Shadnagar. He tied a thread with
turmeric nut in my neck in Hanumana Temple and since that
day he was having sexual intercourse with me in the said room
and he was working in a cylinder company. After one moth
he took off the turmeric nut from my neck. On 12.10.2012 in
the night hours at Ameerpet he slipped and fell down from his
motor cycle and sustained injuries and now he is getting
treatment at Vasudeva Hospital, Karimnagar.

Sd/-
Name: Sarvar Shareef
Rank: S.I. of Police,
GDK II Town.”


20
Name redacted as per the direction in Nipun Saxena (supra)
Crl.A. @ SLP(Crl.) 1445/2025 Page 24 of 28


17. Therefore, in this backdrop, we find that there is nothing
on record to show that the appellant forcibly took the victim away
from lawful guardianship of her parents without their consent or
wrongfully confined in a locked room. On the contrary, the
evidence indicates that the victim voluntarily accompanied the
th
appellant on a motorbike on 4 August 2012 and had a free access
to the house where both of them were residing. Therefore, the
charge of kidnapping from lawful guardianship under Section
363 IPC and wrongful confinement under Section 342 is also not
made out.

C) Charge of Rape under Section 376 IPC

18. The prosecution has sought conviction of the appellant
under Section 376 IPC, asserting that he had committed forcible
sexual intercourse with the victim. It is trite law that a conviction
for rape can be sustained solely on the testimony of the
prosecutrix/victim, provided that her evidence inspires
confidence in the mind of the Court and appears to be natural and
truthful. However, if the version given by the prosecutrix is
inconsistent, unsupported by any medical evidence, or the whole
surrounding circumstances are highly improbable and believable
in the case set up by the prosecutrix, the Court shall not act on
the solitary evidence of the prosecutrix. [See: State of Punjab v.
Crl.A. @ SLP(Crl.) 1445/2025 Page 25 of 28


21
Gurmit Singh ; Vimal Suresh Kamble v. Chaluverapinake
22
Apal S.P . ; Sadashiv Ramrao Hadbe v. State of
23 24
Maharashtra ; Tameezuddin v. State (NCT of Delhi) ;
25
Narender Kumar v. State (NCT of Delhi) ; and Mukesh v. State
26
(NCT of Delhi) ]

19. In the present case, we find that this charge has no legs to
stand on, for she only makes a positive statement about the
occurrence of sexual intercourse and does not even in the
slightest imply the same to be against her will. The absence of
consent is the sine qua non to sustain a charge under Section 376.
That cannot, in our opinion, be met as per the evidence on record.


20. Further, PW-8, who was, at the relevant time, a Civil
Assistant Surgeon at Area Hospital, Godavarikhani, opined upon
examination of the victim that there was regular sexual
intercourse but gave no definite statement regarding the recent
occurrence. Our conclusion here is further fortified by the fact,
as discussed above, that for two months, they resided peacefully
together without even a hint of discomfort or desire on the part
of the victim to leave or escape from the house in Hyderabad.

21
(1996) 2 SCC 384
22
(2003) 3 SCC 175
23
(2006) 10 SCC 92
24
(2009) 15 SCC 566
25
(2012) 7 SCC 171
26
(2017) 6 SCC 1
Crl.A. @ SLP(Crl.) 1445/2025 Page 26 of 28


21. The responsibility of the prosecution is to prove the case
beyond reasonable doubt, which, in our considered view, it has
failed to do in the present case. It appears that the entire
prosecution story has been concocted for reasons best known to
the prosecution. Under the present facts and on the weight of the
evidence placed before the Trial Court, we are of the considered
opinion that no definite conclusion could be drawn about the age
of the victim. The prosecution, therefore, has not successfully
proved that the victim was less than sixteen/eighteen years of age
at the time of the alleged commission of crime, and thus, the
benefit ought to have been given to the appellant. Secondly, as
to the factum of kidnapping, wrongful confinement and rape, we
are convinced that no such offence is made out as it does not meet
the essential ingredients as defined in Sections 342, 363 and 376
IPC. We do not find any evidence which may suggest that the
appellant kidnapped the victim from lawful guardianship or
confined her, for approximately two months, against her volition
in a house at Hyderabad or had sexual intercourse with the victim
against her will or without her consent.

22. In that view of the matter, consequently, the conviction of
the Appellant-convict under Sections 376, 363, and 342 is set
aside, and, therefore, he is entitled to be acquitted of all charges.
The impugned judgment and order of the High Court referred to
in Para 2, is set aside. The appeal is accordingly allowed.
Crl.A. @ SLP(Crl.) 1445/2025 Page 27 of 28




Pending application(s), if any, shall stand disposed of.



..................................J.
(SANJAY KAROL)



...................................J.
(SANDEEP MEHTA)

New Delhi;
July 16, 2025.
Crl.A. @ SLP(Crl.) 1445/2025 Page 28 of 28