(Cause-title taken from Case Information System)
For Appellant : Mr. Ravindra Sharma, Advocate.
For Respondent/State : Mr. Sourabh Sahu, Panel Lawyer.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
1. Heard Mr. Ravindra Sharma, learned counsel for the appellant.
Digitally
signed by
BRIJMOHAN
Also heard Mr. Sourabh Sahu, learned Panel Lawyer, appearing for the
BRIJMOHAN MORLE
MORLE Date:
2026.04.23
10:24:50
+0530
State/respondent.
2. Though the matter is listed today for hearing on I.A. No. 1 of 2024
(application for suspension of sentence and grant of bail), however,
considering that the appellant has been in custody since 02.09.2021,
and with the consent of learned counsel for the parties, the appeal is
taken up for final hearing.
3. Learned State counsel submits that notice issued to the father
(PW-2) of the victim has been duly served; however, no one has
appeared on behalf of the victim to contest the present appeal.
4. The present criminal appeal, preferred under Section 415(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), is directed against
the impugned judgment of conviction and order of sentence dated
05.07.2024 passed by the learned Additional Sessions Judge First Fast
Track Special Court (POCSO Act), Raipur, District Raipur (C.G.) (for
short, 'learned trial Court') in Special Session (POCSO) Case No. 203
of 2021, whereby the appellant has been convicted and sentenced as
follows:
Conviction Sentence
Section 363 of the the Indian Rigorous imprisonment (for short,
Penal Code (for short, 'IPC') 'R.I.') for 07 years and fine of
Rs.500/-, in default of payment of
fine, 02 months R.I. more.
Section 366 of the IPC R.I. for 07 years and fine of Rs. 500/-,
in default of payment of fine, 02
months R.I. more.
Section 5(l)/6 of the Protection R.I. for 20 years and fine of
of Children from Sexual Rs.2000/-, in default of payment of
Offences Act, 2012 (for short, fine, 04 months R.I. more.
'POCSO Act')
All the sentences shall run concurrently.
5. The prosecution case, in brief, is that on 31.08.2021, at Police
Station Kharora, District Raipur, the father (PW-2) of the victim lodged a
report stating that his younger daughter, the victim (PW-1), whose date
of birth is recorded as 28.05.2005 and whose age was approximately 16
years, 03 months, and 03 days, had left the house on 30.08.2021 at
about 12:00 midnight without informing any family member and had not
returned thereafter. Despite making earnest efforts to trace her at the
houses of relatives and acquaintances, her whereabouts could not be
ascertained. The complainant expressed suspicion that some unknown
person had enticed and abducted his minor daughter. On the basis of
the said report, a missing person report was registered at Police Station
Kharora, District Raipur, and subsequently, FIR No. 357/2021 was
registered under Section 363 of the IPC, and investigation was set into
motion.
6. During the course of investigation, a spot map of the place of
occurrence was prepared. A requisition was forwarded to the Tahsildar
concerned for preparation of a site plan. The father of the victim
produced the Class V progress report card of the victim, which was
seized in the presence of independent witnesses. Upon requisition, the
Headmaster of the victim's school (PW-4) produced the admission-
discharge register, which was also seized in accordance with law. A
certified copy of the relevant entry was prepared after due comparison
with the original record and was taken on record, while the original
register was returned to the concerned authority on Supurdnama.
7. The victim was subsequently recovered in the presence of
witnesses, and a recovery panchnama (Ex.P/1) was prepared. Her
statement under Section 161 of the Cr.P.C. was recorded, and her
statement under Section 164 of the Cr.P.C. was also recorded before
the learned Magistrate (Ex.P/5). The victim was produced before the
Child Welfare Committee, where her counselling was conducted, and
thereafter she was handed over to her father. Statements of other
prosecution witnesses were recorded during investigation. Upon
obtaining due consent from the victim and her father (Exs.P/3 & P/13),
the victim was subjected to medical examination, and necessary seizure
proceedings were carried out. During investigation, it was alleged that
the accused/appellant had kidnapped the minor victim from lawful
guardianship for the purpose of illicit intercourse and had committed
repeated sexual assault upon her, thereby attracting the offence of
aggravated penetrative sexual assault. The accused/appellant was
arrested, and intimation of arrest was duly given to his family members
(Ex.P/25). His medical examination was conducted, and his
memorandum statement was recorded (Ex.P/17). The motorcycle
bearing registration No. HERO HF DELUXE CG-04-NL-4838, allegedly
used in the commission of the offence, was seized. The seized articles,
including the underwear, pad cloth, and slides of the victim, as well as
the underwear and slides of the accused, were sent to the State
Forensic Science Laboratory for chemical examination, and the report
received therefrom was taken on record.
8. Statements of the witnesses under Section 161 of the Cr.P.C.
were duly recorded by the Investigating Officer. Upon completion of the
investigation, a charge-sheet was filed before the learned trial Court
against the appellant for offences punishable under Sections 363, 366,
and 376(2)(n) of the IPC, as well as under Section 6 of the POCSO Act.
9. The learned trial Court, upon consideration of the material on
record, framed charges against the appellant under Sections 363, 366,
and 376(2)(n) of the IPC and under Section 5(l)/6 of the POCSO Act.
The charges were read over and explained to the appellant, who
abjured guilt and claimed to be tried.
10. In order to bring home the charges, the prosecution examined 07
witnesses and exhibited 30 documents. The appellant, however, did not
examine any witness in his defence nor did he produce any
documentary evidence.
11. The statement of the appellant was recorded under Section 313 of
the Cr.P.C., wherein he denied all the incriminating circumstances
appearing against him in the prosecution evidence and asserted that he
was innocent and had been falsely implicated in the case.
12. Upon appreciation of the oral and documentary evidence adduced
by the prosecution, the learned trial Court convicted the appellant and
sentenced him in the manner detailed in paragraph 04 of this judgment.
Aggrieved thereby, the appellant has preferred the present appeal.
13. Learned counsel for the appellant vehemently submits that the
appellant has been falsely implicated and that the prosecution has
utterly failed to establish his guilt beyond reasonable doubt. It is
contended that the prosecution case is fraught with material
contradictions, omissions, and inherent inconsistencies, which strike at
the very root of the case and render it wholly unreliable. It is further
urged that the learned trial Court has committed a grave error in
convicting the appellant under the provisions of the POCSO Act, as the
prosecution has failed to conclusively prove that the victim was a minor
at the time of the alleged incident. The reliance placed on the
Admission-Discharge Register (Ex.P/10C), wherein the age of the victim
is recorded as 16 years and 03 months, is wholly misplaced. The
Headmaster (PW-4), in his cross-examination, has categorically
admitted that he is neither the author of the said entry nor in a position
to testify for its correctness or authenticity.
14. It is further significant that the father of the victim (PW-2), in his
deposition before the learned trial Court, has categorically stated that he
is not aware of the actual date of birth of the victim. He has further
deposed that the victim was enrolled in school by her mother and that
he does not know on what basis the date of birth was recorded in the
school records. Notably, the mother of the victim, who would have been
the most competent witness to depose regarding the age of the victim,
has not been examined by the prosecution. In the absence of cogent,
reliable, and admissible documentary evidence regarding the age of the
victim, it was incumbent upon the prosecution to conduct a radiological
examination for determination of age. The failure to do so creates a
serious lacuna in the prosecution case and renders the applicability of
the provisions of the POCSO Act highly doubtful.
15. Learned counsel for the appellant further contends that the
statement of the victim recorded under Section 164 of the Cr.P.C. clearly
reflects that she had accompanied the appellant of her own choice. In
her said statement, the victim has categorically stated that she was in
regular telephonic contact with the appellant, that she herself called him
and asked him to take her along, and despite being told that she was a
minor, she insisted on accompanying him. She further stated that she
stayed with the appellant at his residence and thereafter at his relatives'
place, and that they solemnized marriage in a temple. Importantly, she
has explicitly stated that the appellant did not subject her to any force or
coercion and that she went with him willingly. However, in her deposition
before the learned trial Court, she has materially deviated from her
earlier version and narrated an altogether different story. Such material
improvements and contradictions severely affect the credibility of the
prosecution case. It is also submitted that, as per the prosecution itself,
the victim remained with the appellant during the intervening period of
31.08.2021 to 01.09.2021, yet she neither raised any alarm nor
informed any person that she was being taken against her will or
subjected to any forcible act. This unnatural conduct further weakens
the prosecution case.
16. It is further contended that the medical evidence does not bring
any support to the prosecution version. As per the MLC report
(Ex.P/19), no external or internal injuries were found on the private part
of the victim. Moreover, the FSL report (Ex.P/30) is negative and does
not corroborate the allegations. The absence of any medical or forensic
corroboration, when read in conjunction with the material
inconsistencies in the prosecution evidence, creates a serious doubt
regarding the veracity of the allegations. In such circumstances, the
appellant is clearly entitled to the benefit of doubt. Accordingly, it is
prayed that the present appeal be allowed and the appellant be
acquitted of all the charges.
17. Per contra, learned counsel for the State has opposed the
aforesaid submissions and supported the impugned judgment. It is
submitted that the offences alleged are grave and heinous in nature,
and that the learned trial Court has rightly recorded the conviction after
a thorough and proper appreciation of the evidence on record.
18. It is further contended that the testimony of the victim is cogent,
consistent, and inspires confidence. It is a settled principle of law that
conviction can be based solely on the testimony of the victim, if it is
found to be reliable and trustworthy, even in the absence of
corroboration. It is also submitted that the learned trial Court has duly
considered all the contentions raised on behalf of the appellant and has
recorded findings based on sound reasoning and evidence. Therefore, it
is urged that no illegality, perversity, or infirmity is discernible in the
impugned judgment of conviction and order of sentence, warranting
interference by this Court. The appeal, being devoid of merit, deserves
to be dismissed.
19. We have heard learned counsel for the parties at length and have
perused the entire record of the learned trial Court with due care and
circumspection.
20. The foremost question that arises for consideration in the present
appeal is whether the victim was a minor, i.e., below 18 years of age, on
the date of the alleged incident.
21. For the purpose of determination of the age of the victim, this
Court has carefully scrutinized the evidence available on record. The
prosecution has primarily relied upon the entry in the Admission-
Discharge Register (Ex.P/10C), the progress report of the victim (Article
'A-1'), and the testimony of the victim (PW-1). As per the Admission-
Discharge Register and the progress report (Article 'A-1'), the date of
birth of the victim is recorded as 28.05.2005.
22. In her deposition before the Court, the victim (PW-1) stated her
date of birth to be 28.05.2005. However, the father of the victim (PW-2),
in his testimony, deposed that the victim was about 16 years of age and
that her year of birth was 2005, without specifying the exact date of
birth. He further admitted that he is illiterate and unaware of the precise
date of birth of the victim.
23. The Headmaster (PW-4) of the victim's school deposed that the
particulars of the victim were entered at Serial No. 1055 in the
Admission-Discharge Register (Ex.P/10C), and that the victim was
admitted to Class I on 11.07.2011. As per the said register, the date of
birth of the victim is recorded as 28.05.2005. However, in his cross-
examination, he candidly admitted that the said entries were not made
by him and that he could not state the basis or the document on which
the date of birth of the victim had been recorded. This admission
substantially diminishes the evidentiary value and reliability of the said
document.
24. Upon an overall and cumulative consideration of the facts and
circumstances of the case, as well as the evidence on record, it
becomes apparent that the prosecution has failed to produce cogent,
reliable, and legally admissible evidence to conclusively establish the
date of birth or age of the victim so as to prove that she was below 18
years of age at the time of the alleged incident. Mere reliance on the
school Admission-Discharge Register (Ex.P/10C) and the progress
report (Article 'A-1'), in the absence of any foundational evidence
regarding their authenticity or the source of the recorded date of birth, is
insufficient to safely conclude that the victim was a minor.
25. Furthermore, the oral testimonies of the prosecution witnesses on
the aspect of age are neither consistent nor definite and do not inspire
confidence. In such circumstances, this Court is not persuaded to
accept the prosecution's assertion that the victim's date of birth was
28.05.2005 or that she was a minor at the relevant point of time. The
benefit of doubt, therefore, must necessarily enure to the appellant.
26. 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 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."
27. The Hon'ble Supreme Court in paragraphs 40, 42, 43, 44 and 48
of its judgment in Alamelu and Another Vs. State, represented by
Inspector of Police, reported in (2011) 2 SCC 385, has observed as
under:
"40. Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl's date of birth was 15th June,
1977. Therefore, even according to the aforesaid
certificate, she would be above 16 years of age (16
years 1 month and 16 days) on the date of the
alleged incident, i.e., 31st July, 1993. The transfer
certificate has been issued by a Government School
and has been duly signed by the Headmaster.
Therefore, it would be admissible in evidence under
Section 35 of the Indian Evidence Act. However, the
admissibility of such a document would be of not
much evidentiary value to prove the age of the girl in
the absence of the material on the basis of which the
age was recorded. The date of birth mentioned in the
transfer certificate would have no evidentiary value
unless the person, who made the entry or who gave
the date of birth is examined.
42. Considering the manner in which the facts
recorded in a document may be proved, this Court in
the case of Birad Mal Singhvi Vs. Anand Purohit1,
observed as follows:-
"The date of birth mentioned in the scholars'
register has no evidentiary value unless the
person who made the entry or who gave the
date of birth is examined....Merely because
the documents Exs. 8, 9, 10, 11, and 12
were proved, it does not mean that the
contents of documents were also proved.
Mere proof of the documents Exs. 8, 9, 10,
11 and 12 would not tantamount to proof of
all the contents or the correctness of date of
birth stated in the documents. Since the
truth of the fact, namely, the date of birth of
Hukmi Chand and Suraj Prakash Joshi was
in issue, mere proof of the documents as
produced by the aforesaid two witnesses
does not furnish evidence of the truth of the
facts or contents of the documents. The
truth or otherwise of the facts in issue,
namely, the date of birth of the two
candidates as mentioned in the documents
could be proved by admissible evidence i.e.
by the evidence of those persons who could
vouchsafe for the truth of the facts in issue.
No evidence of any such kind was produced
by the respondent to prove the truth of the
facts, namely, the date of birth of Hukmi
Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as
mentioned in the aforesaid documents 1988
(Supp) SCC 604 have no probative value
and the dates of birth as mentioned therein
could not be accepted."
43. The same proposition of law is reiterated by this
Court in the case of Narbada Devi Gupta Vs.
Birendra Kumar Jaiswal2, where this Court observed
as follows:-
"The legal position is not in dispute that
mere production and marking of a
document as exhibit by the court cannot be
held to be a due proof of its contents. Its
execution has to be proved by admissible
evidence, that is, by the "evidence of those
persons who can vouchsafe for the truth of
the facts in issue."
44. In our opinion, the aforesaid burden of proof has
not been discharged by the prosecution. The father
says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined
at all. Therefore, the entry in the transfer certificate
can not be relied upon to definitely fix the age of the
girl.
48. We may further notice that even with reference
to Section 35 of the Indian Evidence Act, a public
document has to be tested by applying the same
standard in civil as well as criminal proceedings. In
this context, it would be appropriate to notice the
observations made by this Court in the case of
Ravinder Singh Gorkhi Vs. State of U.P.4 held as
follows:-
"The age of a person as recorded in the
school register or otherwise may be used
for various purposes, namely, for obtaining
admission; for obtaining an appointment;
for contesting election; registration of
marriage; obtaining a separate unit under
the ceiling laws; and even for the purpose
of litigating before a civil forum e.g.
necessity of being represented in a court of
law by a guardian or where a suit is filed on
the ground that the plaintiff being a minor
he was not appropriately represented
therein or any transaction made on his
behalf was void as he was a minor. A court
of law for the purpose of determining the
age of a (2006) 5 SCC 584 party to the lis,
having regard to the provisions of Section
35 of the Evidence Act will have to apply
the same standard. No different standard
can be applied in case of an accused as in
a case of abduction or rape, or similar
offence where the victim or the prosecutrix
although might have consented with the
accused, if on the basis of the entries made
in the register maintained by the school, a
judgment of conviction is recorded, the
accused would be deprived of his
constitutional right under Article 21 of the
Constitution, as in that case the accused
may unjustly be convicted."
28. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments, the
Hon'ble Supreme Court has observed in para 33 as under:-
"33. What emerges on a cumulative consideration of
the aforesaid catena of judgments is as follows:
33.2. If an application is filed before the
Court claiming juvenility, the provision of
sub-section (2) of section 94 of the JJ Act,
2015 would have to be applied or read
along with sub-section (2) of section 9 so
as to seek evidence for the purpose of
recording a finding stating the age of the
person as nearly as may be.
XXXX
XXXX
XXXX
33.3. That when a claim for juvenility is
raised, the burden is on the person raising
the claim to satisfy the Court to discharge
the initial burden. However, the documents
mentioned in Rule 12(3)(a)(i), (ii), and (iii)
of the JJ Rules 2007 made under the JJ
Act, 2000 or sub- section (2) of section 94
of JJ Act, 2015, shall be sufficient for prima
facie satisfaction of the Court. On the basis
of the aforesaid documents a presumption
of juvenility may be raised.
33.4. The said presumption is however not
conclusive proof of the age of juvenility and
the same may be rebutted by contra
evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a
Court is not the same thing as declaring the
age of the person as a juvenile sought
before the JJ Board when the case is
pending for trial before the concerned
criminal court. In case of an inquiry, the
Court records a prima facie conclusion but
when there is a determination of age as per
sub-section (2) of section 94 of 2015 Act, a
declaration is made on the basis of
evidence. Also the age recorded by the JJ
Board shall be deemed to be the true age
of the person brought before it. Thus, the
standard of proof in an inquiry is different
from that required in a proceeding where
the determination and declaration of the
age of a person has to be made on the
basis of evidence scrutinized 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 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."
29. Recently, in case of P. Yuvaprakash Vs. State represented by
Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme
Court has held in paras 14 to 17 as under :
"14. Section 94 (2)(iii) of the JJ Act clearly indicates
that the date of birth certificate from the school or
matriculation or equivalent certificate by the
concerned examination board has to be firstly
preferred in the absence of which the birth
certificate issued by the Corporation or Municipal
Authority or Panchayat and it is only thereafter in
the absence of these such documents the age is to
be determined through "an ossification test" or "any
other latest medical age determination test"
conducted on the orders of the concerned authority,
i.e. Committee or Board or Court. In the present
case, concededly, only a transfer certificate and not
the date of birth certificate or matriculation or
equivalent certificate was considered. Ex. C1, i.e.,
the school transfer certificate showed the date of
birth of the victim as 11.07.1997. Significantly, the
transfer certificate was produced not by the
prosecution but instead by the court summoned
witness, i.e., CW-1. The burden is always upon the
prosecution to establish what it alleges; therefore,
the prosecution could not have been fallen back
upon a document which it had never relied upon.
Furthermore, DW-3, the concerned Revenue Official
(Deputy Tahsildar) had stated on oath that the
records for the year 1997 in respect to the births
and deaths were missing. Since it did not answer to
thedescription 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 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 fromthe 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."
30. Upon an appreciation of the evidence on record, it emerges that
the victim (PW-1) has stated her date of birth as 28.05.2005. PW-2, the
father of the victim, in his testimony, deposed that the victim was about
16 years of age and that her year of birth was 2005, without specifying
the exact date of birth. He further admitted that he is illiterate and
unaware of the precise date of birth of the victim. PW-4, the
Headmaster of the victim's school, referred to the Admission-Discharge
Register (Ex.P/10C), wherein the date of birth of the victim is recorded
as 28.05.2005. However, in his cross-examination, PW-4 candidly
admitted that the relevant entries were not made by him and that he
could not state the basis or the document on which the said date of birth
had been recorded.
31. In view of the aforesaid evidence, this Court is of the considered
opinion that the prosecution has failed to produce reliable, cogent, and
legally admissible evidence to conclusively establish the age of the
victim. The age of the victim has, therefore, not been proved in
accordance with law, giving rise to a serious doubt in the prosecution
case on this crucial aspect.
32. Apart from the aforesaid evidence, no primary or foundational
document, such as a birth certificate or any contemporaneous public
record (for instance, entries in a Kotwari Register), has been produced
by the prosecution to establish that the victim was below 18 years of
age on the date of the incident. The oral testimonies of PW-1 (victim)
and PW-2 (father of the victim), coupled with the school records,
including the Admission-Discharge Register (Ex.P/10C) and the
progress report of the victim (Article 'A-1'), do not inspire confidence in
the absence of proof regarding the source or basis of the recorded date
of birth.
33. In the absence of any foundational evidence, it cannot be ruled
out that the date of birth recorded in the school documents was based
on approximation or assumption. The prosecution has also failed to
produce the underlying documents on the basis of which such entries
were originally made in the school records. Consequently, the evidence
relating to the age of the victim falls short of the standard required to
conclusively establish her minority. Despite these deficiencies, the
learned trial Court proceeded to hold the victim to be a minor, which, in
the considered opinion of this Court, is unsustainable in law.
34. The next question that arises for consideration is whether the
appellant has committed rape upon the victim.
35. The victim (PW-1), in her deposition, stated that she knows and
identifies the accused, Vishnu Prasad Dhidhi, as he had earlier visited
her house and, since then, she has been acquainted with him. She
stated that her date of birth is 28.05.2005. According to her, about one
year prior to the incident, the accused had come to her house and is a
distant relative of her mother. He gave her his mobile number and
expressed his desire to speak with her. Thereafter, he spoke to her two
to three times over the phone and conveyed his intention to marry her.
She stated that she told the accused that he was like her brother, but he
insisted that he still wished to marry her. She further deposed that when
she asked the accused to come to her house, he did not do so. Instead,
one night, the accused called her and informed her that he was
standing near her house and asked her to come to him. On his asking,
she went to meet him, whereafter he took her to his house at Murritih,
where they stayed for one day. She further stated that when her parents
called the accused on his mobile phone, he told them that she had not
come to his house. Thereafter, the accused took her to Gariyaband to
the house of his uncle and aunt. She stated that the accused took her to
a Shankar Temple, where he married her, and thereafter took her to his
house at Gariyaband. She further stated that the accused established
physical relations with her two to three times. After one day, the accused
took her back to his house at Murritih. In the evening, at about 7-8 p.m.,
two police personnel arrived and took both her and the accused to
Police Station Kharora.
36. She further stated that she was recovered from the custody of the
accused and that a recovery panchnama (Ex.P/1) was prepared. Upon
her production, her underwear, containing her used sanitary pad/cloth,
was seized by the police vide seizure memo (Ex.P/2). She further
deposed that prior to her medical examination, her consent was
obtained (Ex.P/3). She was also produced before the Child Welfare
Committee, Raipur, where her statement was recorded and counselling
was conducted, the report of which is Ex.P/4. Her statement was also
recorded before the Court of the Judicial Magistrate First Class under
Section 164 of the Cr.P.C. (Ex.P/5), and the order-sheet is Ex.P/6. The
Patwari map (Ex.P/7) was also prepared during the investigation.
37. It has further come on record that although in her statement under
Section 164 of the Cr.P.C. (Ex.P/5), the victim stated that the accused
had not used any force against her, in her statement under Section 161
of the Cr.P.C., she stated that the accused had established physical
relations with her. Similarly, in her counselling report (Ex.P/4), she
stated that the accused had established physical relations with her
twice, and she has reiterated the same version in her deposition before
the learned trial Court.
38. The father of the victim (PW-2) corroborated the statements made
by the victim, affirming the accuracy and consistency of her account.
39. The medical examination of the victim was conducted on
01.09.2021 by Dr. Nandini Soni (PW-5), and her reports are on record
as Exs.P/19 and P/20. The Doctor deposed that the secondary sexual
characteristics of the victim were fully developed and that, on
examination, her hymen was found to be ruptured with irregular
margins. The underwear of the victim, produced for examination, was
found to have red and brown stains, and the sanitary pad was also
stained with blood; the said articles were thereafter resealed and
handed over to the concerned constable. However, the Doctor did not
opine that the rupture of the hymen was recent or necessarily the result
of forcible sexual intercourse; rather, she stated that such rupture could
be caused by a hard and blunt object, thereby rendering the finding
inconclusive. She further deposed that, for determination of the age of
the victim, radiological (X-ray) examination was advised and a urine
pregnancy test (UPT) was also recommended; however, no conclusive
material in this regard has been brought on record.
40. Dr. S.R. Baghel (PW-6), who examined the appellant, deposed
that he conducted the medical examination on 02.09.2021, and his
reports are exhibited as Exs.P/21 and P/22. On examination, he found
that smegma was absent and opined that the accused was capable of
performing sexual intercourse. He further stated that the underwear of
the accused was duly sealed and handed over to the concerned
constable for chemical examination. However, the Doctor did not render
any opinion linking the appellant with the alleged act, nor do the findings
indicate the time or occurrence of any sexual activity. It is well settled
that the mere absence of smegma or a general opinion regarding
potency is not conclusive proof of commission of rape, and in the
absence of any corroborative forensic evidence, such medical findings
do not materially advance the prosecution case.
41. As per the report of the State Forensic Science Laboratory
(Ex.P/30), the underwear and slides of the accused, as well as the
underwear, pad cloth, and slides of the victim, were subjected to
chemical examination. The said report does not detect the presence of
semen stains or human spermatozoa on the underwear, pad cloth, or
slides of the victim, thereby providing no forensic corroboration to
support the prosecution case.
42. It is a settled principle of criminal jurisprudence that the
prosecution must prove its case beyond reasonable doubt by leading
cogent, reliable, and unimpeachable evidence. Suspicion, however
strong, cannot take the place of proof. It is equally well settled that a
conviction in cases of sexual assault can be based solely on the
testimony of the victim, provided that such testimony is found to be
wholly reliable and inspires confidence.
43. Further, in Alamelu (supra), where the facts and circumstances
were similar to that of the present case, the Hon'ble Supreme Court
observed as under:
"51. This Court in Rameshwar v. State of Rajasthan
{AIR 1952 SC 54} declared that corroboration is not
the sine qua non for a conviction in a rape case. In
the aforesaid case, Vivian Bose, J. speaking for the
Court observed as follows:-
"The rule, which according to the cases
has hardened into one of law, is not that
corroboration is essential before there
can be a conviction but that the necessity
of corroboration, as a matter of prudence,
except where the circumstances make it
safe to dispense with it, must be present
to the mind of the judge, ... The only rule
of law is that this rule of prudence must
be present to the mind of the judge or the
jury as the case may be and be
understood and appreciated by him or
them. There is no rule of practice that
there must, in every case, be
corroboration before a conviction can be
allowed to stand."
52. The aforesaid proposition of law has been
reiterated by this Court in numerous judgments
subsequently. These observations leave no manner
of doubt that a conviction can be recorded on the
sole, uncorroborated testimony of a victim provided
it does not suffer from any basic infirmities or
improbabilities which render it unworthy of
credence.
xxx xxx xxx
54. Even PW5, Thiru Thirunavukarasu stated that
Sekar (A1) had brought the girl with him to his
house and told him that he had married her. They
had come to see Trichy and requested a house to
stay. This witness categorically stated that he
thought that they were newly married couple. He
had made them stay in Door No. 86 of the Police
Colony, which was under his responsibility. On 10th
August, 1993, the police inspector, who arrived
there at 10.00 p.m. told this witness that Sekar (A1)
had married the girl by threatening her and "spoiled
her". The girl, according to the prosecution, was
recovered from the aforesaid premises. Therefore,
for six days, this girl was staying with Sekar (A1).
She did not raise any protest. She did not even
complain to this witness or any other residents in
the locality. Her behavior of not complaining to
anybody at any of the stages after being allegedly
abducted would be wholly unnatural.
55. Earlier also, she had many opportunities to
complain or to run away, but she made no such
effort. It is noteworthy that she made no protest on
seeing some known persons near the car, after her
alleged abduction. She did not make any complaint
at the residence of Selvi, sister of Sekar (A1) at
Pudupatti. Again, there was no complaint on seeing
her relatives allegedly assembled at the temple.
Her relatives apparently took no steps at the time
when mangalsutra was forcibly tied around her
neck by Sekar (A1). No one sent for police help
even though a car was available. She made no
complaint when she was taken to the house of
PW5, Thiru Thirunavukarasu and stayed at his
place. Again, there was no protest when Sekar (A1)
took her to the police station on 5th day of the
alleged abduction and told at the Tiruchi Police
Station that they had already been married. The
above behaviour would not be natural for a girl who
had been compelled to marry and subjected to illicit
sexual intercourse.
56. In view of the aforesaid, we are of the
considered opinion that the prosecution has failed
to prove beyond reasonable doubt any of the
offences with which the appellants had been
charged. It appears that the entire prosecution
story has been concocted for reasons best known
to the prosecution."
44. In the light of the aforesaid settled principles, the evidence on
record in the present case has been carefully evaluated. Upon an
overall and cumulative assessment, this Court finds that the prosecution
case is fraught with material inconsistencies and inherent
improbabilities. Though the victim (PW-1) has alleged sexual
intercourse, her conduct, as elicited from the record, appears unnatural
and does not inspire confidence. Despite having travelled through
several places and having had opportunities to raise alarm or seek help,
she did not disclose the alleged incident to any person. Even during her
stay at the house of the appellant, where other family members were
present, she neither raised any objection nor made any attempt to
escape. Such conduct materially affects the credibility of the
prosecution version.
45. The medical evidence also does not lend support to the
prosecution case. The testimony of Dr. Nandini Soni (PW-5) indicates
that although the hymen of the victim was found ruptured, no definite
opinion was given that the same was the result of forcible sexual
intercourse. No external or internal injuries suggestive of force were
found. The medical findings, therefore, remain inconclusive and do not
corroborate the allegations.
46. The forensic evidence further weakens the prosecution case. As
per the report of the State Forensic Science Laboratory (Ex.P/30), no
semen stains or human spermatozoa were detected on the slides,
underwear, or other articles of the victim. In a case alleging repeated
sexual intercourse, the absence of any forensic trace assumes
significance and creates a serious doubt regarding the prosecution
version.
47. In view of the aforesaid deficiencies, the testimony of the victim,
which is the foundation of the prosecution case, does not inspire the
confidence required for sustaining a conviction. The material
inconsistencies, coupled with the absence of medical and forensic
corroboration, render it unsafe to rely solely upon her testimony.
48. Consequently, this Court is of the considered opinion that the
prosecution has failed to prove its case beyond reasonable doubt. The
appellant is, therefore, entitled to the benefit of doubt.
49. Accordingly, the appeal is allowed. The impugned judgment of
conviction and order of sentence dated 05.07.2024 are hereby set
aside. The appellant is acquitted of all the charges levelled against him.
He is reported to be in custody and shall be released forthwith, if not
required in any other case.
50. In view of the final disposal of the appeal, I.A. No. 1 of 2024
(application for suspension of sentence and grant of bail) does not
survive for consideration and is accordingly disposed of.
51. Keeping in view the provisions of Section 437-A of the CrPC (now
Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the
appellant is directed to forthwith furnish a personal bond in terms of
Form No. 45 prescribed in the Code of Criminal Procedure of sum of
Rs.25,000/- with one surety in the like amount before the Court
concerned which shall be effective for a period of six months along with
an undertaking that in the event of filing of Special Leave Petition
against the instant judgment or for grant of leave, the aforesaid
appellant on receipt of notice thereof shall appear before the Hon'ble
Supreme Court.
52. The learned trial Court record along with 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
Amit/Brijmohan
