# Bhagwat Kushwaha v. State of U.P - **Citation:** (2026) 1 ILRA 697 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2026-01-13 - **Case number:** Criminal Appeal No. 452 of 2021 - **Bench:** Achal Sachdev - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwat-kushwaha-v-state-of-u-p-53971 - **Pages:** 21 ## Text _Characters 0–39,970 of 63,471. This is a partial read: ask again with offset=39970 for what follows._ 1 All. Bhagwat Kushwaha Vs. State of U.P. 697 also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. 49. We have carefully scrutinized and assessed the evidence of all the prosecution witnesses. This Court is of the view that the evidence produced by the prosecution has neither quality nor credibility and it would be unsafe to rest conviction upon such evidence. After having considered the matter thoughtfully, we find that the evidence on record in the case is not sufficient to bring home guilt of the appellant. 50. Accordingly, the order dated 14.12.2017 passed by Additional District and Sessions Judge, Court No.13, Agra in Session Trial No. 380 of 2012 arising out of Case Crime No. 320 of 2012, under Section 302 IPC, Police Station Sikandara, District Agra is set aside. 51. The appeal is allowed. 52. Appellant Girraj Singh is in jail. He shall be released forthwith unless wanted in any other case. 53. Office is directed to transmit a copy of this order along with trial court record to the court concerned for compliance and compliance report be submitted to this Court within two months. --------- (2026) 1 ILRA 697 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 13.01.2026 BEFORE THE HON'BLE ACHAL SACHDEV, J. Criminal Appeal No. 452 of 2021 Bhagwat Kushwaha ...Appellant Versus State of U.P. ...Respondent Issue for Consideration The appellant challenged the conviction passed by the Special Judge (POCSO) for offences under sections 366 and 376 IPC. Headnotes A. Indian Penal Code,1860-Sections 366, 376- Criminal Procedure Code, 1973-Section 374(2)- Juvenile Justice (Care and Protection of Children) Act, 2015-Section 94-Protection of Children from Sexual Offences Act,2012-Section 3⁄4,29-Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989-Section 3(2)(v)-Rape-Consent-Major prosecutrix-Loveaffair-Statement under section 164 CrPc admitting voluntary departure-Subsequent improvement alleging forcible abduction and rape-Absence of injuries- Medical evidence not supporting sexual assault-Ossification test-Margin of error-Absence of documentary proofProsecutrix treated as major-Testimony suffers from material inconsistencies and not 698 INDIAN LAW REPORTS ALLAHABAD SERIES corroborated by medical evidence-Benefit of doubt to accused-Conviction unsustainable.(Para 25 to 70) (E-6) Held The court ruled that the prosecutrix was rightly held to be major. In absence of documentary evidence regarding age, reliance on ossification test with permissible margin of error was proper in view of the principles laid down in Jarnail Singh Vs. St.of Haryana and Mahadeo Vs. Maharastra. Appeal allowed. Conviction and sentence set aside. Case law Cited Jarnail Singh Vs State of Haryana, 2013 AIR SC 3467, Mahadeo Vs State of Maharashtra, (2013) 14 SCC 637 and Jaimala Vs Secretary (Home), State of J&K, AIR 1982 SC,Kaini Rajan Vs State of Kerala, (2013) 9 SCC 113,State (GNCT of Delhi) Vs Vipin @ Lalla, 2025 SCC OnLine SC 78,Vijaya Singh & Anr. Vs State of Uttarakhand, 2024 SCC Online SC 3510-referred to. List of Acts Indian Penal Code,1860, Criminal Procedure Code, 1973, Juvenile Justice (Care and Protection of Children) Act, 2015, Protection of Children from Sexual Offences Act,2012, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. List of Keywords Age determination, Ossification test, Major, Minor, Consent, Voluntary elopement, Contradictory testimony, Medical evidence, Benefit of doubt, Burden of proof, Section 164 Statement. Case Arising From CRIMINAL JURISIDICTION: CRIMINAL APPEAL No. - 452 of 2021 Bhagwat Kushwaha Vs. State of U.P. From the Judgment and Order dated 13.01.2026 of the High Court of Judicature at Allahabad. Appearances for Parties Advs. for Appellant(s):- Abhishek Mayank, Abhishek Srivastava, Arbaz Danish, Vipin Kumar, Zia Naz Zaidi Advs. for Respondent(s):- G.A., Rajesh Kumar Singh, Vinay Kumar Singh (Delivered by Hon'ble Achal Sachdev, J.) 1. Heard Sri Abhishek Mayank, learned counsel for the appellant, Sri Vinay Kumar Singh, learned counsel for the informant and Sri Sanjay Singh, learned A.G.A.-I for the State. 2. This criminal appeal has been filed by the appellant against the judgement and order dated 05.09.2019 and sentence order dated 06.09.2019 passed by Special Judge (POCSO), Additional Sessions Judge, Court No.07, District- Jhansi, in Special Sessions Trial No. 41 of 2015 (State of U.P. Vs. Bhagwat Kushwaha) arising out of Case Crime No. 64 of 2015, Police Station- Sakrar, District- Jhansi, whereby the appellant has been convicted and sentenced to undergo five years imprisonment and fine of Rs.10,000/- u/s 366 I.P.C. and ten years imprisonment and fine of Rs.20,000/- u/s 376 I.P.C. along with default stipulation. 1 All. Bhagwat Kushwaha Vs. State of U.P. 699 3. The facts of the case in brief, as per the prosecution case are that on 28.05.2015 at 12:25 pm, a written report was made by the informant Ramswaroop, son of Ghanshyam, resident of village- Luhari, Police Station- Sakrar, District- Jhansi stating that his daughter had gone missing since 3:00 am on 28.05.2015 and then they realized that their daughter had been kidnapped by Bhagwat, son of Munnu Kushwaha, of their village. 4. The police registered a criminal case as Case Crime No. 64 of 2015 dated 28.05.2015 on the basis of the information against the appellant, Bhagwat under Sections 363, 366 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act (hereinafter referred to as the S.C./S.T. Act ) and commenced investigation. 5. The victim was recovered by the police on 29.05.2015 from Mauranipur railway station by the police and her statement was recorded and medical examination was conducted on 30.05.2015 and ossification test for determination of age was done on 02.06.2015 wherein the victim was found to be aged 17 years. The statement of the victim was recorded before the Magistrate on 04.06.2015. The accused/appellant was arrested on 04.06.2015. The Investigating Officer, after completion of evidence, filed charge-sheet against the accused/appellant under Sections 363, 366 and 376 I.P.C., Section 4 of Protection of Children from Sexual Offences Act (hereinafter referred to as the POCSO Act ) and Section 3(2)(v) of the S.C./S.T. Act. 6. The trial court, after taking cognizance of offences described in the charge-sheet, after giving the appellant an opportunity of being heard, framed charge under Sections 363, 366 and 376 I.P.C., Section 3/4 POCSO Act and Section 3(2)(v) of the S.C./S.T. Act. 7. The prosecution examined 8 witnesses to prove their case and has proved 8 documents in documentary evidence. The list of witnesses examined is as follows :- S.No. Name of witness Category Document proved PW-1 Ramswaroop Informant (father of victim & witness of fact) Exhibit Ka 11 (Written Report) PW-2 Rajkumari mother of victim & witness of fact Exhibit Ka 1 & 2 (statement of victim under s.164 Cr.P.C.) PW-3 Victim designated X Victim PW-4 Dr. Rashmi Singh Kushwaha Medico Legal (Formal witness) Exhibit Ka 3 (Medico Legal Examination report Exhibit Ka 4 Supplementary report PW-5 Dr. M.S. Rajput Pathologist Exhibit Ka 5 (Vaginal smear examination report) PW-6 Dr. Rajendra Singh Radiologist (formal witness) Exhibit Ka 6 (Ossification test report) 700 INDIAN LAW REPORTS ALLAHABAD SERIES PW-7 Jitendra Kumar Dubey Investigation officer Exhibit Ka 7 (Charge Sheet ) Exhibit Ka 8 (site plan) PW-8 Constable Magan Singh Constable clerk Exhibit Ka 9 (FiR) Exhibit Ka 10(General Diary entry no.25 ) 8. Their testimony, in brief, is enumerated hereunder (i) PW-1 Ramswaroop is the informant of the case and father of the victim. The informant is not an eye witness. The informant, in his evidence before the court, in his examination in chief, has stated that on 28.05.2015, they were sleeping inside their house and their daughter, the victim was also sleeping on rooftop of the house. They were sleeping under neem tree. That at around 3:00 hrs at night, when his wife woke up, she found that their daughter (victim) was missing and she had been taken away by Bhagwat Kushwaha. On a previous occasion as well, the appellant took away his daughter and in relation to that incident, an F.I.R. was registered against him and the case is pending. His wife told him that Bhagwat was seen roaming around the house at night prior to the incident. In cross-examination, the witness states that his daughter was recovered after two days. For the sake of convenience, the written application filed by PW-1 Ramswaroop at Police Station- Sakrar, District- Jhansi, is being reproduced hereunder :- " निवेदि है नि प्रार्थी रामस्वरूप s/o घिश्यामदास अनहरवार निवासी लुहारी र्थािा सिरार झाांसी नविीता D/O रामस्वरूप 12.00 बजे रानि में घर पर र्थी इस िारण हम लोग सो गये मााँ रानि में तीि बजे जगी तो बच्ची िहीं नमली तो हमें ऐहसास हुआ तो भगवत s/o मन्िू िुशवाहा िा लड़िा लेिर भाग गया 28/5/2015 िी तारीख र्थी। अतः श्री माि् जी से निवेदि है नि उनचत िािूिी िाययवाही िरिे िी िृपा िी जाय।" (ii) PW-2 Rajkumari is mother of the victim and is not an eye witness. (iii) PW-3 X is the victim and she in her examination-in-chief has stated before the court on oath that the incident took place at about 1 year from today at 12 at night. Then the accused Bhagwat came to her house and forcibly took her with him and on the way in a field, he raped her. Then he took her to Mauranipur and from there, he took her to Jhansi by bus and after two days, he brought her back to Mauranipur from Jhansi and at Mauranipur Railway Station, the police had apprehended them and then brought them back to the police station and on 02.06.2015, she was brought to Mahila Thana where the police recorded her statement in which she had stated that Bhagwat had forcibly raped her in the field and on the same day, she was taken to the district hospital where her medical examination was conducted in the presence of her mother to which she has consented. The police produced her in the court where her statement was recorded by the Magistrate. The witness has proved the statement as Ext.Ka.2. In her examination-in-chief, the witness has stated that . she forgot to tell the Magistrate about rape. In her cross-examination, the witness states that her father is a homeguard and further states that she does not remember the date of incident and she does not remember the month or year of the incident. Bhagwat came at 12 in the night to take her along with him and he had her open the door of the house and forcibly took her 1 All. Bhagwat Kushwaha Vs. State of U.P. 701 away. She raised an alarm but nobody heard it. Her father and mother were at home. The police recovered her after two days from Mauranipur. She further states that she went to Mau with Bhagwat and they reached Mau at 3 in the morning by bus and from there, he took her to Jhansi by bus. She raised an alarm but nobody heard it. Her statement was recorded in the Court u/s 164 Cr.P.C. in which she did not tell that she loved Bhagwat and went along with him on her own will. The Magistrate has recorded wrong statement. She had told the Magistrate about her age being 18 years. The Magistrate recorded her incorrect statement. She did not tell the Magistrate about rape. Therefore, he did not write it in her statement. She raised alarm in Mau and she did not raise any alarm in Jhansi. She did not got along with Bhagwat of her own free will. She got married about one year back in Gwalior of her own free will and consent. Her father was on duty at the time of the incident. She is literate but did not take admission in school. (iv) PW-4 is the doctor who had medically examined the victim on 30.05.2015 and had referred her for ossification test and had also obtained the vaginal swabs of victim to have them checked for presence of live or dead spermatozoa. The doctor did not find any external marks of injury on the body of the victim. On medical examination of the victim, he found that hymen of victim had old tear that had healed and after going through pathological examination report of vaginal smear, the doctor did not find any evidence of recent sexual activity. (v) PW-5 Dr. M.S. Rajput conducted the pathological examination of vaginal smear and did not find any live or dead spermatozoa in the slides. (vi) PW-6 Dr. Rajendra Singh conducted ossification test and took x-ray of the victim on 01.06.2015 in order to determine the age of the victim and opined the victim to be 17 years of age on following grounds : Epiphyses around the elbow joint have fused, Epiphyses of lower ends of radius & ulna bones have lines of fusion seen, Epiphyses of inner ends of both clavicles have not fused, Epiphyses around the knee joint have fused, secondary ossification centre of iliac crest have not fused. The X-Ray plates have not been produced in evidence by the prosecution. (vii) PW-7 Jitendra Kumar Dubey is the Investigating Officer of the case. (viii) PW-8 Constable Magan Singh was Constable clerk at Police Station- Sakrar. 9. After recording prosecution evidence, statement of appellant was recorded under Section 313 Cr.P.C. wherein the appellant alleged false implication and the witnesses were inimical due to village rivalry. 10. However, the appellant did not produce any evidence in his defence. 11. After hearing the arguments of prosecution and defence, the trial court acquitted the accused/appellant of charge under Section 363 I.P.C., Section 3 read with 4 of the POCSO Act and Section 3(2)(v) of S.C./S.T. Act. 702 INDIAN LAW REPORTS ALLAHABAD SERIES 12. The trial court found the appellant guilty of offence under Section 366 I.P.C. and convicted the appellant to imprisonment for a term of 5 years and fine of Rs.10,000/- and in default, the appellant had to undergo further imprisonment for a term of 3 months. 13. The trial court found the appellant guilty of offence under Section 376 I.P.C. and convicted the appellant to rigorous imprisonment for a term of 10 years and fine of Rs. 20,000/- and in default, the appellant had to undergo further imprisonment for a term of 6 months. 14. Hence the present appeal. 15. Heard learned counsel for the appellant, learned A.G.A. and learned private counsel for the victim and perused the record of the case. 16. Learned counsel for the appellant submits that despite the fact that the trial court itself had held the victim to be a major, it ignored the medical evidence produced by the prosecution which does not support prosecution case and failed to apply judicial mind diligently when holding the appellant guilty of offence under Section 363 I.P.C. and Section 376 I.P.C. The appellant has been falsely implicated. 17. Learned A.G.A. and learned counsel for the informant have submitted that the trial court judgment does not suffer from any irregularity and the trial court has rightly convicted the appellant of the offences charged after correct appreciation of evidence on record. 18. Perused the record. 19. The informant of the case PW-1 is father of the victim. The First Information Report was registered at the police station on 28.05.2015 at 12:25 hrs and the victim was recovered by the police on 29.05.2015 and the victim was medically examined on 30.05.2015. An ossification test for determination of age was conducted on 02.06.2015 wherein the victim was held to be 17 years old. The ossification report has been proved as Exhibit Ka 6 by radiologist PW-6 Jitendra Kumar Dubey. The appellant/accused was arrested on 04.06.2015. 20. As per the evidence of the radiologist PW-6, the victim was 17 years old and a minor. 21. The Hon ble Supreme Court, in the case of Jarnail Singh Vs State of Haryana, 2013 AIR SC 3467, in para 22 & 23, has outlined the procedure to be adopted for the determination of the age of a minor victim :- ..22. On the issue of the determination of the age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforementioned 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : 1 All. Bhagwat Kushwaha Vs. State of U.P. 703 12. Procedure to be followed in the determination of age. (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be, the Committee, shall decide the juvenility or otherwise of the juvenile or the child or as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining (a)(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; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule. (6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing an appropriate order in the interest of the juvenile in conflict with law. 704 INDIAN LAW REPORTS ALLAHABAD SERIES 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 of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with the 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, PW 6. 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 an 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), a matriculation (or equivalent) certificate of the child concerned 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. 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 the age of the child concerned, on the basis of medical opinion. 22. Section 94 of the Juvenile Justice (Care & Protection of Children) Act, 2015 provides- "94. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: 1 All. Bhagwat Kushwaha Vs. State of U.P. 705 Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. (emphasis supplied)" 23. Before proceeding further, the provisions of law involved in this appeal must be referred to :- Section 27 of the POCSO Act - "27. Medical examination of a child. (1) The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973 (2 of 1973). (2) In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. (3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence. (4) Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution." Section 164 of the Code of Criminal Procedure, 1973 (as amended) -- 164A. Medical examination of the victim of rape - (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. (2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely : 706 INDIAN LAW REPORTS ALLAHABAD SERIES (i) the name and address of the woman and of the person by whom she was brought; (ii) the age of the woman; (iii) the description of material taken from the person of the woman for DNA profiling; (iv) marks of injury, if any, on the person of the woman; (v) general mental condition of the woman; and (vi) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained. (5) The exact time of commencement and completion of the examination shall also be noted in the report. (6) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section. (7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf. Explanation. For the purposes of this section, "examination" and "registered medical practitioner" shall have the same meanings as in section 53. Section 29 of The Protection Of Children From Sexual Offences Act, 2012 - "29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved." Section 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015 defines a child means a person who has not completed eighteen years of age; 24. Section 34 of The Protection Of Children From Sexual Offences Act, 2012 prescribes the authority and procedure for the determination of the age of a minor in conflict with law/minor victim. 34. Procedure in case of commission of offence by a child and determination of age by the Special Court - 1 All. Bhagwat Kushwaha Vs. State of U.P. 707 (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person, and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person determined by it under sub-section (2) was not the correct age of that person. 25. In Rishipal Singh Solanki, (2022) 8 SCC 602, this Court, while dealing with an appeal filed by the father of the deceased, noted the difference between the Rules 2007 and the JJ Act 2015. It was observed: "29. The difference in the procedure under the two enactments could be discerned as under: 29.1. As per the JJ Act, 2015, in the absence of the requisite documents as mentioned in clauses (i) and (ii) of Section 94(2), there is a provision for the determination of the age by an ossification test or any other medical age-related test to be Conducted on the orders of the Committee or the JJ Board as per Section 94 of the said Act; whereas, under Rule 12 of the JJ Rules, 2007, in the absence of relevant documents, a medical opinion had to be sought from a duly constituted Medical Board which would declare the age of the juvenile or child. 29.2. With regard to the documents to be provided as evidence, what was provided under Rule 12 of the JJ Rules, 2007, has been provided under sub-section (2) of Section 94 of the JJ Act, 2015 as a substantive provision. 29.3. Under Section 49 of the JJ Act, 2000, where it appeared to a competent authority that a person brought before it was a juvenile or a child, then such authority could, after making an inquiry and taking such evidence as was necessary, record a finding as to the juvenility of such person and state the age of such person as nearly as may be. Sub-section (2) of Section 49 stated that no order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order had been made is not a juvenile and the age recorded by the competent authority to be the age of person so brought before it, for the purpose of the Act, be deemed to be the true age of that person." 26. The trial court, in its judgement, in absence of any documentary evidence produced by the prosecution relating to age of the victim, placing reliance on ratio given in the case of Mahadeo Vs. State of Maharashtra, (2013)14 SCC 637 and Jaimala Vs. Secretary (Home), State of J&K, AIR 1982 SC, while considering the ossification test report, held that the victim was above 708 INDIAN LAW REPORTS ALLAHABAD SERIES 18 years of age and was a major at the time of the incident. The finding of trial court on point of victim being a major has not been assailed by way of appeal and in absence of any documentary evidence in regard to age of the victim on record and in light of ratio of various case law of Hon ble Supreme Court, the finding of trial court needs no interference. 27. Because the victim was major at the time of incident, the finding of trial court acquitting the appellant of charge under Section 363 I.P.C. and Section 3/4 POCSO Act need not be interfered with. 28. The trial court has held that the charge under Section 3(2)(v) of the S.C./S.T. Act is not made out on the basis of evidence on record and has acquitted the appellant of charge under Section 3(2)(v) of the S.C./S.T. Act. The finding needs no interference. 29. Now the question that crops up in the mind is whether the victim was abducted and raped by the appellant ? 30. Insofar as charge under Section 366 I.P.C. and 376 I.P.C. is concerned, consent is a fundamental aspect to constitute an offence under Section 366 and 375 of the Indian Penal Code (I.P.C.). 31. Legally, consent refers to an unequivocal, voluntary, and informed agreement to engage in a specific act. Within the framework of Section 375 I.P.C., consent must be given freely without any form of coercion, manipulation, or deception. The Supreme Court of India has emphasized that consent must involve an active and willing participation from the woman, rather than mere submission or acquiescence resulting from fear or pressure. 32. Section 366 of the Indian Penal Code, 1860 qualifies as minor offence of kidnapping, abducting, or inducing a woman to compel her marriage or engage her in illicit intercourse with someone other than her husband. This provision has played a significant role in the freedom given to women. Furthermore, it has been a deterrent to those heinous crimes that violate fundamental rights and dignity. 33. Section 366 of the I.P.C. :- Kidnapping, abducting or inducing woman to compel her marriage, etc. states : " Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid. 1 All. Bhagwat Kushwaha Vs. State of U.P. 709 34. Section 366 I.P.C. incorporates specific elements that must be established to constitute an offence. These elements are : " Such accused must be found guilty of having actually committed the act of either kidnap or abduction as defined sections 359 and 362 of IPC. Kidnapping refers to the act of taking a minor away without the consent of the natural guardian, whereas abduction, on the other hand, implies forcing a person to move from one place to another by threat, deceit, or coercion." 35. Section 375 I.P.C. defines offence of Rape and Section 376 I.P.C. provides the punishment for offence of Rape . 36. Section 375 of the Indian Penal Code is one of the most crucial provisions in the context of sexual offences, specifically defining the crime of rape. This section outlines the conditions under which a sexual act is considered rape, emphasizing the lack of consent as the central element. The legal definition provided by Section 375 I.P.C. is vital for several reasons. 37. First and foremost, Section 375 I.P.C. offers a clear and precise definition of rape, helping to eliminate ambiguities that could otherwise lead to misinterpretation and miscarriage of justice. By specifying conditions such as against her will and without her consent, the law delineates the boundaries of lawful and unlawful sexual conduct, thereby protecting the bodily autonomy and dignity of individuals. 38. Secondly, addressing and understanding the legal definition of rape is essential for ensuring justice for survivors of sexual violence. Clear legal provisions aid in the prosecution of offenders and provide a framework for the judicial system to deliver appropriate penalties. Moreover, it fosters a legal environment where survivors feel supported and are more likely to come forward to report offences. 39. Furthermore, the importance of Section 375 I.P.C. extends beyond the legal realm, influencing societal attitudes towards sexual violence. It underscores the severity of rape as a crime and promotes a culture of respect for consent and personal boundaries. By doing so, it plays a crucial role in the broader fight against gender-based violence and in fostering a society that upholds the rights and dignity of all individuals. 40. Section 375 of the Indian Penal Code (I.P.C.) defines the offence of rape in India. The legal text reads as follows :- " A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: 1. Against her will. 2. Without her consent. 710 INDIAN LAW REPORTS ALLAHABAD SERIES 3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. 4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. 5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 6. With or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 41. This legal definition outlines the conditions under which sexual intercourse is considered rape, emphasizing the importance of consent and the circumstances that nullify it. 42. To understand the legal framework of Section 375, it s crucial to delve into the elements that constitute the crime of rape : -Against Her Will: This element implies that the woman has not agreed to the sexual act under any circumstances. It focuses on the lack of voluntary participation. - Without Her Consent: This highlights the absence of the woman s approval or agreement. Consent must be explicit, and its absence constitutes rape. - Consent Obtained Under Fear: If a woman s consent is obtained through threats of death or hurt to her or someone she cares about, it is considered coerced and invalid. -Consent Under Misconception of Identity: When a woman consents believing the man to be her husband, but he is not, the consent is deemed invalid. - Consent Given Under Unsound Mind or Intoxication: If a woman is incapable of understanding the nature and consequences of her consent due to intoxication, unsoundness of mind, or influence of drugs, the consent is considered invalid. -Age Factor: Sexual intercourse with a girl under sixteen years, with or without consent, is considered rape. This age limit underscores the protection of minors from sexual exploitation. 1 All. Bhagwat Kushwaha Vs. State of U.P. 711 The phrases against her will and without her consent are pivotal in understanding the crime of rape under Section 375 :- - Against Her Will: This means that the act was done despite the woman s resistance. It indicates force or threat, rendering the woman s lack of agreement evident.