Chattisgarh High Court
Shyam Sundar @ Tillu Anand vs State Of Chhattisgarh on 25 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:14203-DB
NAFR
Digitally
signed by
BABLU
BABLU RAJENDRA
RAJENDRA BHANARKAR
HIGH COURT OF CHHATTISGARH AT BILASPUR
BHANARKAR Date:
2026.03.27
10:12:37
+0530
CRA No. 1252 of 2023
Raju Kumar Anand S/o Late Bihari Anand @ Ramsingh Aged About 21
Years R/o - Rohrakhurd, P.S.- City Kotwali Mungeli, District : Mungeli,
Chhattisgarh
--- Appellant
versus
State Of Chhattisgarh Through- P.S. - City Kotwali Mungeli, District :
Mungeli, Chhattisgarh
--- Respondent
CRA No. 1169 of 2023
Shyam Sundar @ Tillu Anand S/o Late Bihari Anand @ Ramsingh Aged About 37 Years R/o Village - Roharakhurd, Police Station - City Kotwali, Mungeli, Civil And Revenue District - Mungeli, Chhattisgarh.
---Appellant Versus State Of Chhattisgarh Through - The Station House Officer, Police Statiion - City Kotwali, Mungeli, Civil And Revenue, District : Mungeli, Chhattisgarh
--- Respondent For Appellant-Raju : Mr.Syed Afaque Husain Rizvi, Advocate in Kumar Anand CRA No.1252/2023 For Appellant- : Mr.Parasmani Shriwas, Advocate in CRA Shyam Sunder @ No.1169/2023 2 Tillu Anand For Respondent : Mr.S.S.Baghel, Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Per Ramesh Sinha, CJ 25/03/2026
1. Since the aforesaid two criminal appeals have been filed against the impugned judgment dated 25.05.2023 passed by the Special Judge (F.T.S.C.) POCSO Act, Mungeli, District Mungeli in M.CR.C. No.40/2021, they were clubbed and heard together and being disposed of by this common judgment.
2. Appellant-Raju Kumar Anand has filed Criminal Appeal No.1252/2023 against the impugned judgment dated 25.05.2023 passed by the Special Judge (F.T.S.C.) POCSO Act, Mungeli, District Mungeli in M.CR.C. No.40/2021, whereby the trial Court has convicted him for offence under Sections 363, 366A and 376(2)(n) of the Indian Penal Code (hereinafter called as 'IPC') and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as 'POCSO Act') and sentenced to undergo RI for three years and fine of Rs.500/-, in default of payment of fine to further undergo SI for one month, RI for five years and fine of Rs.500/-, in default of payment of fine to further undergo SI for one month and RI for twenty years and fine of 3 Rs.1000/-, in default of payment of fine to further undergo SI for one month.
3. Appellant-Shyam Sundar @ Tillu Anand has filed Criminal Appeal No.1169/2023 against the impugned judgment dated 25.05.2023 passed by the Special Judge (F.T.S.C.) POCSO Act, Mungeli, District Mungeli in M.CR.C. No.40/2021, whereby the trial Court has convicted him for offence under Section 363/109 of the IPC and sentenced to undergo RI for three years and fine of Rs.500/-, in default of payment of fine to further undergo SI for one month.
4. The prosecution story, in brief, is that on 22.07.2021 father of the victim (PW-4) lodged a missing report at Police Station City Kotwali Mungeli, District Mungeli stating that his daughter was missing from 9:30 A.M. on 21.07.2021 where she had left home for buying a notebook at nearby shop. He apprehended that appellant Raju Kumar Anand with the help of his family members has abduced the minor victim on verge of marrying her. On the said report, an FIR was registered under Section 363 of the IPC vide Ex.P-10 and investigation was started.
5. On investigation, the victim was recovered from the possession of appellant Raj Kumar Anand on 23.07.2021 vide Ex.P-5. Upon recovery of the minor victim, her medical examination was conducted vide Ex.P-9 in which no injury was found and hymen was ruptured. Her statement under Section 164 CrPC before the Magistrate was recorded vide Ex.P-7. Spot map was prepared by 4 the patwari vide Ex.P-8. The statements of the victim as well as other witnesses were recorded. The present appellant along with other co-accused persons were arrested and Sections 366, 376/34 of the IPC and Section 4 & 6 of the POCSO Act were added, seizures were made, arrest memos were prepared. Dakhil kharij register was seized vide Ex.P-2. Certified copy of the dakhil kharij registered was Ex.P-3(c) in which the date of the victim has been mentioned as 02.07.2007. After following necessary procedures and upon completion of investigation, the charge- sheet was presented before the learned jurisdictional criminal Court.
6. On the basis of material available on record, charges were framed against appellants. The appellants abjured their guilt and pleaded innocence.
7. In order to establish the charge against the appellants, the prosecution examined 12 witnesses. The statements of the appellants under Section 313 of the CrPC were also recorded in which they denied the material appearing against them and stated that they are innocent and they have been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellants and sentenced them as mentioned in paras 2 and 3 of the judgment. Hence, these appeals.
5
8. Mr.Syed Afaque Husain Rizvi, learned counsel for appellant-Raju Kumar Anand in CRA No.1252/2023 submits that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the victim that on the date of incident she was minor and less than 18 years of age. In absence of examination of author of the dakhil-kharij register, the same cannot be taken into consideration for determination of age of the victim. Dakhil-kharij register is a weak type of evidence. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the victim that on the date of incident she was below 18 years of age. It is further argued by learned counsel for the appellant that the learned trial Court has failed to appreciate that the victim (PW-2) lived with the appellant without any protest for two days and looking to her conduct, it is clearly evident that she has willing and consenting party, therefore, the impugned conviction of the appellant being unsustainable in law, deserves to be quashed. The trial Court has failed to appreciate the evidence of Dr.Nileema Singh (PW-3), who has specifically stated that on examination of the victim, she found no injury and hymen was ruptured. He also submits that if the entire case of the prosecution is taken as it is, then also the alleged offences are not made out against the appellant and he is entitled for acquittal.
9. Mr.Parasmani Shriwas, learned counsel for appellant Shyam 6 Sundar @ Tillu Anand in CRA No.1169/2023 submits that the impugned judgment of conviction and sentence passed by the Learned Trial Court is contrary to the facts and circumstances of the case and the settled principles of law. Learned Trial Court failed to properly appreciate the evidence on record and has erroneously convicted the appellant. Hence, the impugned judgment is liable to be quashed and set aside. As per the prosecution story, the entire allegation is primarily against the main accused, namely Raju. The present appellant has been falsely implicated solely on the ground that he is the step-brother of the main accused. No specific role or overt act has been attributed to the appellant. Learned Trial Court failed to consider this material aspect and wrongly convicted the appellant. He further submits that the appellant was neither present at the place of occurrence nor was the victim ever recovered from his possession. There is no evidence connecting the appellant with the alleged offence. The Learned Trial Court overlooked this crucial fact and thus erred in recording the conviction. He also submits that the prosecution has failed to produce any reliable or authentic documentary evidence to establish that the victim was a minor at the relevant time. Learned Trial Court did not properly examine this deficiency and wrongly concluded against the appellant. The victim was a major and had voluntarily gone to meet the brother of the appellant, namely Raju. The alleged recovery of the victim has been falsely shown by the prosecution 7 authorities. Upon objection by the family members, the appellant has also been falsely implicated. This aspect has not been duly considered by the Learned Trial Court. As such, the appeal so far as to the present appellant deserves to be allowed and the impugned judgment deserves to be set aside.
10. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and submits that the victim was minor and below 18 years of age at the time of incident, which is proved by the School dakhil-kharij register Ex.P-3(c) which contains the date of birth of the victim as 02.07.2007. The dakhil-kharij register is admissible piece of evidence to determine the age of the victim. Therefore there is no illegality or infirmity in the findings of the learned trial Court. The victim was abducted by the appellants and kept away from the lawful guardianship. The appellants kept her in illegal confinement for a considerable period and appellant Raju Kumar Anand forcefully committed sexual intercourse with her. As such, the impugned judgment needs no interference.
11. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection.
12. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School dakhil-kharij register Ex. P-3(c) which is sought to be proved by PW-1 Chandrabhan 8 Tiwari, Principal of the Saraswati Shishu Mandir, Mungeli. Chandrabhan Tiwari (PW-1) has stated in para 3 of his deposition that he has brought with him today the original dakhil kharij register. At Serial No. 198, the details of the victim are recorded as follows: daughter of Chandrabhushan Singh Rajput, caste Rajput, resident of Roharakhurd. Her date of birth is recorded as 02.07.2007. The date of her admission to the school is 28.06.2017 in Class VI, where she is presently studying. The same is marked as Exhibit P-3, and its certified copy is marked as Exhibit P-3C, bearing his signatures at portions marked 'A' to 'A'. The acknowledgment of return (supurdnama) of the original dakhil kharij register is marked as Exhibit P-4, which also bears his signatures at portions marked 'A' to 'A'. In para 4 of his cross- examination, she has admitted that today he has brought the dakhil kharij register of the Higher Secondary School relating to the date of birth of the victim. The victim took admission in their school in Class VI. In para 5 of his cross-examination, he has also admitted that he has not brought any document regarding the school where the victim studied from Class I to V, nor is any such detail recorded in the dakhil kharij register. In para 6 of his cross-examination, he has also admitted that the parents/guardians of the victim did not provide him with any document regarding her age. He also admitted that the entries in the dakhil kharij register were not made by him; voluntarily stated that the entries were made by the previous Principal. 9
13. At the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her father and on the oral information given by father of the victim the entry was made in the School dakhil kharij register. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the victim.
14.After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school dakhil-kharij register it would not be safe to hold that the victim was minor on the date of incident. The statement of the victim, as also the statement of PW-1 Chandrabhan Tiwari, Principal of the Saraswati Shishu Mandir, Mungeli are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 02.07.2007.
15. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon'ble Supreme Court has held as under :
"26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is 10 relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
16. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. It was 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.11
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."
17. In the matter 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 12 the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it.
Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.
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 13 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."
18. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the 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 14 certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of 15 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. 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."
19. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and 16 legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident, yet the trial Court in the impugned judgment has held her minor, hence, we set aside the finding given by the trail Court that on the date of incident the victim was minor.
20. So far as the issue of forceful sexual intercourse by appellant Raju Kumar Anand upon the victim is concerned, we have carefully perused the statement of the victim recorded under Section 164 CrPC (Ex.P-7). In her 164 CrPC statement (Ex.P-7), the victim has stated that she study in Class 10 at Saraswati Shishu Mandir. A year ago, she met Raju Satnami while she was going to school. The incident occurred on 21st July 2021. She was at home preparing for an online class scheduled for 10:00 A.M. When she received a call from Raju Satnami at 9:00 A.M., he called her to Rohra Khurd society. Anil Satnami, a resident of Dhangaon, arrived on a motorcycle and threatened to kill her, asking her to get on the motorcycle. She panicked and got on the motorcycle. Raju Satnami and Anil Satnami took her on the motorcycle to the bus stand. There, she met Raju's stepbrother, Tillu. He told Raju Satnami to go and he would follow him on the bus. Anil Satnami then dropped her off near Banjari Temple in Raipur. From there, Raju Satnami took her to Telibandha in Raipur, where he met his stepbrother, Tillu. They took her to a rented house that Tillu had rented. Raju Satnami's younger sister, his mother, Rukmani, and his brother, Nancha, were also present. 17 After that, Tillu left. A short time later, Tillu returned. He broke a mirror, held it to her neck, and threatened to kill me if I screamed. Raju Satnami then applied vermilion to her forehead. For two days, Raju Satnami forcibly raped her. Raju Satnami's stepbrother, Tillu, also tried to force himself on her and beat her severely. When she went to the bathroom, Raju Satnami's younger sister Chhoti would accompany her, and his mother Rukmani would lock the bathroom door from outside. They did not give her anything to eat or drink for two days, and Tillu would threaten her a lot, saying, "Can your father give me Rs. 5,00,000/-" If not, he would kill her or sell her. Tillu tortured her a lot, shouted slogans, intimidated her and threatened her. Then her father came with Mungeli police and brought her back to Mungeli.
21. In para 1 of her evidence, the victim (PW-2) has stated that she study at Saraswati Shishu Nadir Mungeli. She was in Class 10 at the time of the incident. She was scheduled to have an online class at 10:00 A.M. When she received a call from the accused, Raju, at 9:00 A.M., calling her to Rohrakhurd society. When she arrived to discuss the exam, Anil Satnami, a resident of Dhangaon, was there on his motorcycle and Raju, Satnami and Anil Satnami threatened her and threatened to kill her, so she sat on the accused's motorcycle. After that, while they were taking her on the motorcycle, she met Raju's step brother Tillu near the Mungeli bus stand and he said that they all go ahead, he will 18 follow them. In para 3 of her deposition, she has stated that accused Raju and Anil took her on a motorcycle to Banjari Mata Temple in Raipur, where Anil left her and accused Raju. Accused Raju then took her in an auto-rickshaw to Telibandha, Raipur, where he met Tillu, who was living in a rented house. In para 4 of her deposition, she has stated that accused Raju's mother Rukhmani, his sister Chhoti and his younger brother Nancha were in the said rented house, where Tillu left saying that accused Raju and she have to stay there. After some time Tillu again came to that rented house, then accused Raju filled vermilion in her parting saying that he will keep her as his wife and accused Raju kept raping her forcefully for two days. Accused Tillu said whether her father can give five lakh rupees or not and threatened her and beat her. In para 5 of her deposition, she has stated that accused Raju's mother, Rukmani, and his sister, Chhoti, would lock the door whenever she went to the bathroom. Raju's stepbrother, Tillu, also attempted to force himself on her. They would not allow her to leave the rented house. In para 20 of her cross-examination, she has admitted that other people and her relatives have houses around her house. She has also admitted that she did not tell the people around that the accused was calling her to the society. She has also admitted that when accused Raju and Anil threatened her and took her away on a motorcycle, she did not scream for help. 19
22.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.
23. Considering the entire evidence available on record and the conduct of the victim, we are of the opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with appellant Raju Kumar Anand. Therefore, in the above facts and circumstances of the case, offence under Sections 363 & 366A of the IPC and Section 6 of the POCSO Act would not be made out against appellant Raju Kumar Anand and offence under Section 363/109 of the IPC would not be made out against appellant Shyam Sundar @ Tillu Anand.
24. For the foregoing reasons, Criminal Appeal No.1252/2023 filed on behalf of appellant Raju Kumar Anand and Criminal Appeal No.1169/2023 filed on behalf of appellant Shyam Sundar @ Tillu Anand are allowed and the impugned judgment and conviction and order of sentence dated 25.05.2023 is set aside. The appellants stand acquitted from all the charges. Appellant 20 Raju Kumar Anand is in jail. He be released forthwith if not required in any other case. Appellant Shyam Sundar @ Tillu Anand is on bail. He is not required to surrender. His bail bonds are cancelled and sureties stands discharged.
25. Keeping in view of the provisions of Section 437-A CrPC (Now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the appellants are directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties each in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court.
26. The Trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Bablu