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CGHC010170882024 2026:CGHC:29282-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 1009 of 2024

Satyadev Bhagat S/o Shri Ashok Bhagat Aged About 24 Years Cast-

Uroan, Occupation- Farmer, Resident Of Village- Jaymaraga, Chowki-

Manora, Police Station- Jashpur, District : Jashpur, Chhattisgarh

... Appellant

versus

State of Chhattisgarh Through- Police Out- Post-Manora, The Station

House Officer Of Police Station- Jashpur, District : Jashpur,

Chhattisgarh

... Respondent

(Cause-title taken from Case Information System)

For Appellant :Mr. Sanjeev Kumar Sahu, Advocate

For Respondent/State:Ms. Anusha Naik, Deputy Government

Advocate

Hon'ble Shri Ramesh Sinha, Chief Justice

Hon'ble Shri Ravindra Kumar Agrawal, Judge

Judgment on Board

Per Ramesh Sinha, Chief Justice

13.07.2026

1.Heard Mr. Sanjeev Kumar Sahu, learned counsel appearing for

the appellant as well as Ms. Anusha Naik, learned Deputy

Government Advocate, appearing for the State/respondent.

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2.This criminal appeal filed under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against

the judgment of conviction and order of sentence dated

22.04.2024 passed by the Additional Sessions Judge, additional

Charge F.T.C. Jashpur, District Jashpur, Chhattisgarh in POCSO

Case No.57/2021 whereby the appellant has been convicted and

sentenced in the following manner :-

Conviction : Sentence

Under Section 363 of

the Indian Penal

Code, 1860

Rigorous imprisonment for 05

years with fine of Rs.1000/-, in

default of payment of fine,

additional simple imprisonment

for 03 months.

Under Section 365 of

the Indian Penal

Code, 1860

Rigorous imprisonment for 05

years with fine of Rs.1000/-, in

default of payment of fine,

additional simple imprisonment

for 03 months.

Under Section 366-A

of the Indian Penal

Code, 1860

Rigorous imprisonment for 05

years with fine of Rs.1000/-, in

default of payment of fine,

additional simple imprisonment

for 03 months.

Under Section 368 of

the Indian Penal

Code, 1860

Rigorous imprisonment for 05

years with fine of Rs.1000/-, in

default of payment of fine,

additional simple imprisonment

for 03 months.

Under Section 376(2)

(I) sub-section 376(3)

of the Indian Penal

Rigorous imprisonment for 20

years with fine of Rs.2000/-, in

default of payment of fine,

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Code, 1860 and

Under Section 6 of

the Protection of

Children from Sexual

Offences Act, 2012

additional simple imprisonment

for 01 year.

It was directed to run all the sentences concurrently.

3.Learned State counsel submits that notice issued to PW-1 father

of the victim has been served, but none has appeared on behalf

of the victim to contest the present appeal.

4.The prosecution case, in brief but as emerging from the evidence

adduced before the learned trial Court, is that the father of the

victim (PW-1) lodged an oral report at Police Outpost Manora,

Police Station Jashpur, alleging that on 23.07.2021 his minor

daughter, aged about 15 years 1 month and 28 days, had left their

residence at Village Sanna stating that she was going to Village

Jaymarga to the ancestral house where her elder brother was

residing. However, instead of reaching there, she went to the

house of Sugan Lal, the maternal uncle of the appellant-accused

Satyadev Bhagat, and started residing there with the appellant.

Upon receiving information, the mother of the victim (PW-2) went

to the said house, brought the victim back and left her at the

residence of her elder uncle (PW-8) at Village Jaymarga before

returning home. On the following day, i.e., 25.07.2021, when the

victim was staying at her uncle's house, the appellant allegedly

enticed her away once again. Village witnesses Mahendra Ram

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(PW-7) and Kartik Ram noticed the appellant taking the victim

away and informed her father over telephone. The father, along

with family members, searched for the victim but neither she nor

the appellant could be traced. On the basis of the aforesaid oral

report, First Information Report (Ex.P/1) was registered against

the appellant for the offence punishable under Section 363 of the

Indian Penal Code.

5.During the course of investigation, the investigating agency

constituted a police team for tracing the victim. After sustained

efforts, the victim was recovered from the custody and company

of the appellant from Piska More, Ranchi, State of Jharkhand, and

a Recovery Panchnama (Ex.P/12) was prepared. After recovery,

the victim was handed over to her parents under Supurdnama

(Ex.P/2). During investigation, the statements of the witnesses

under Section 161 CrPC were recorded, wherein it was revealed

that after enticing the victim, the appellant had taken her from

Jaymarga to the house of his maternal uncle Sugan Lal and

thereafter to the house of his sister at Village Dumri.

Subsequently, both of them proceeded to Ranchi, where they

stayed together in the houses of acquaintances and thereafter in

a rented accommodation near Ravi Steel Chowk. According to the

prosecution, during the entire period the appellant kept the victim

away from the lawful guardianship of her parents on the false

assurance of marriage and repeatedly subjected her to forcible

sexual intercourse.

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6.As part of the investigation, the victim was medically examined by

Dr. Pallavi (PW-10) on 06.12.2021 pursuant to police requisition

(Ex.P/19). The doctor prepared the medical examination report

(Ex.P/20) and the prescribed medical proforma (Ex.P/21). During

examination, vaginal slides and the undergarment of the victim

were collected, sealed and handed over to the police. The

appellant was also subjected to potency examination by Dr. Uday

Bhagat (PW-9), who prepared the medical report (Ex.P/17) in the

prescribed format (Ex.P/18) opining that the appellant was

capable of performing sexual intercourse. The seized vaginal

slides and undergarments of the victim were seized under Seizure

Memo (Ex.P/23) and were subsequently forwarded to the

Forensic Science Laboratory for chemical examination. The FSL

report (Ex.P/27) revealed the presence of semen stains and

human spermatozoa on the vaginal slides as well as on the

undergarment of the victim.

7.During investigation, the victim was also produced before the

learned Judicial Magistrate for recording of her statement under

Section 164 of the Cr.P.C., for which the Investigating Officer

submitted an application (Ex.P/24). The Investigating Officer

further obtained the school admission register and educational

records relating to the victim for determination of her age. The

father of the victim (PW-1), pursuant to notice (Ex.P/6), produced

the school admission register, which was seized vide Seizure

Memo (Ex.P/7). The certified extract of the admission register

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(Ex.P/9-C) disclosed the date of birth of the victim as 26.05.2006.

The prosecution also obtained the spot map prepared by the

Patwari Praveen Tirkey (PW-5), which was exhibited as Ex.P/15,

besides the spot map prepared during investigation (Ex.P/4). After

completion of investigation and upon finding sufficient material,

charge-sheet was filed against the appellant.

8.The learned trial Court framed charges against the appellant for

the offences punishable under Sections 363, 365, 366-A, 368 and

376(2)(I) read with Section 376(3) of the Indian Penal Code, 1860

(for short, “IPC”) read with Section 6 of the Protection of Children

from Sexual Offences Act, 2012 (for short, “POCSO”). The

appellant abjured guilt, pleaded false implication and claimed to

be tried.

9.In order to bring home the charges framed against the appellant,

the prosecution examined as many as fifteen witnesses and

adduced both oral and documentary evidence. PW-1, the father of

the victim, proved the lodging of the First Information Report

(Ex.P/1), narrated the circumstances in which the victim went

missing from the lawful guardianship of her parents, and deposed

regarding the efforts made by the family to trace her. He further

proved the recovery of the victim, the Supurdnama by which her

custody was restored to her parents (Ex.P/2), the consent

furnished for her medical examination (Ex.P/3), and also proved

the seizure of the school admission register relating to the date of

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birth of the victim through seizure memo (Ex.P/7). PW-2, the

mother of the victim, fully corroborated the testimony of PW-1

regarding the victim initially being found at the house of the

appellant's maternal uncle, her subsequent disappearance, the

information received from relatives, the lodging of the report,

recovery of the victim from Ranchi, and her medical examination.

She also proved the consent memo executed for the medical

examination of the victim.

10.The victim herself was examined as PW-3. Although she resiled

from her previous statements during trial and did not support the

prosecution case in material particulars, she admitted her

recovery by the police from Ranchi under the recovery

panchnama (Ex.P/12), admitted her signatures on the consent

memo (Ex.P/13), and acknowledged that after her recovery she

was handed over to her parents. Since she departed from her

earlier version, she was declared hostile and extensively cross-

examined by the prosecution.

11.PW-4 Ajay Kumar was examined as a seizure witness. PW-5

Praveen Tirkey, the Patwari, proved the spot map prepared during

investigation (Ex.P/15). PW-6 Smt. Monica Mudihar, the Assistant

Teacher of the school attended by the victim, proved the school

admission and withdrawal register containing the date of birth of

the victim, as well as the seizure thereof by the Investigating

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Officer, thereby establishing the documentary evidence relating to

the age of the victim.

12.PW-7 Mahendra Ram, a relative witness, deposed that he had

seen the victim accompanying the appellant and informed the

father of the victim about the same. PW-8 Jaychand Ram, another

relative, also supported the prosecution to the extent that the

victim had been taken away by the appellant from his village and

that despite search she could not be traced immediately.

13.The medical evidence was adduced through PW-9 Dr. Uday

Bhagat, who conducted the potency examination of the appellant

and proved the medical examination report (Ex.P/17) and the

prescribed format (Ex.P/18), opining that the appellant was

capable of performing sexual intercourse. PW-10 Dr. Kumari

Pallavi, who medically examined the victim, proved the requisition

for medical examination (Ex.P/19), the medical examination report

(Ex.P/20), and the prescribed proforma (Ex.P/21). She deposed

that the hymen of the victim was found ruptured, two fingers could

be admitted easily into the vagina, vaginal slides and

undergarments were collected and sealed for forensic

examination, and in her opinion the victim had been subjected to

sexual intercourse, though final opinion regarding recent

intercourse was reserved pending FSL examination.

14.PW-11 Ishwar Prasad Warle, Assistant Sub-Inspector and a

member of the police team constituted for recovery of the victim,

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proved that the victim was recovered from the custody of the

appellant at Ranchi and proved the recovery panchnama

(Ex.P/12). PW-12 Tejaswari Swarnkar, the woman police officer,

proved recording of the statement of the victim under Section 161

Cr.P.C.

15.The investigation was further proved by PW-13, who corroborated

the recovery proceedings and investigation conducted after

tracing the victim. PW-14 Ramnath Ram, the Assistant Sub-

Inspector, proved registration of the First Information Report

(Ex.P/1), preparation of the spot map (Ex.P/4), seizure

proceedings (Ex.P/5), and the initial investigation carried out by

him. PW-15 Chandraprakash Tripathi, the Investigating Officer,

gave a comprehensive account of the investigation conducted by

him. He proved the applications sent for medical examination of

the victim and the appellant (Ex.P/16, Ex.P/19 and Ex.P/22),

seizure of vaginal slides and undergarments (Ex.P/23), forwarding

of the victim for recording of her statement under Section 164

Cr.P.C. (Ex.P/24), requisition for preparation of Patwari map

(Ex.P/26), forwarding of the seized articles for forensic

examination, and proved the FSL report (Ex.P/27), wherein

human semen and spermatozoa were detected on the vaginal

slides and undergarments of the victim.

16.Thus, the prosecution, besides examining the aforesaid

witnesses, brought on record the documentary evidence including

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the First Information Report (Ex.P/1), Supurdnama (Ex.P/2),

consent memos (Ex.P/3 and Ex.P/13), spot map (Ex.P/4), seizure

memos (Ex.P/5, Ex.P/7 and Ex.P/23), school admission register

and certified extracts regarding the age of the victim (Ex.P/9-C),

recovery panchnama (Ex.P/12), medical examination reports

(Ex.P/17, Ex.P/20), applications sent during investigation

(Ex.P/16, Ex.P/19, Ex.P/22, Ex.P/24 and Ex.P/26), Patwari map

(Ex.P/15), and the Forensic Science Laboratory report (Ex.P/27),

besides other connected documents exhibited during trial. The

defence, on the other hand, did not examine any witness in

support of its case and merely exhibited one document (Ex.D/1).

17.After completion of the prosecution evidence, the statement of the

appellant was recorded under Section 313 of the Code of Criminal

Procedure. The appellant denied every incriminating circumstance

appearing against him in the prosecution evidence, pleaded

complete innocence, and asserted that he had been falsely

implicated owing to previous animosity. He denied having

kidnapped the victim, denied having confined or subjected her to

sexual intercourse, disputed the prosecution evidence regarding

her recovery from his custody, and also questioned the

documentary evidence relied upon by the prosecution. However,

despite being afforded full opportunity, the appellant neither

entered the witness box nor examined any witness in defence.

Except producing Ex.D/1, no oral or documentary evidence was

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adduced to probabilise his defence or to rebut the statutory

presumptions available under the provisions of the POCSO Act.

18.Upon a thorough appreciation of the entire oral, documentary,

medical and scientific evidence brought on record, the learned

Special Judge (POCSO), after recording detailed findings on

every point for determination, held that the prosecution had

successfully established that the victim was below 16 years of age

on the date of the incident; that she had been taken away from

the lawful guardianship of her parents by the appellant without

their consent; that she was wrongfully confined at different places;

and that during the period she remained in the custody of the

appellant she was repeatedly subjected to penetrative sexual

assault.

19.The learned trial Court found that the evidence of the parents of

the victim (PW-1 and PW-2), the testimony of the independent

witnesses to the extent it supported the prosecution, the

documentary evidence regarding the age of the victim, the

recovery of the victim from the custody of the appellant, the

medical evidence of PW-9 and PW-10, the testimony of the

Investigating Officers (PW-11, PW-14 and PW-15 ), and the

Forensic Science Laboratory report (Ex.P/27) constituted a

complete chain of evidence proving the guilt of the appellant

beyond all reasonable doubt. Consequently, the learned trial

Court convicted the appellant Satyadev Bhagat for the offences

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punishable under Sections 363, 365, 366-A, 368 and 376(2)(i)

read with Section 376(3) of the IPC read with Section 6 of the

POCSO Act and sentenced him as indicated in the opening

paragraph of this judgment. Aggrieved by the judgment of

conviction and order of sentence, the present criminal appeal has

been preferred by the appellant.

20.Mr. Sanjeev Kumar Sahu, learned counsel appearing for the

appellant, assailed the impugned judgment of conviction and

order of sentence passed by the learned Special Judge (POCSO)

and submitted that the same is wholly unsustainable in law as well

as on facts. It was contended that the learned trial Court has

failed to appreciate the oral as well as documentary evidence in

its correct perspective and has recorded findings which are

contrary to the material available on record. According to the

learned counsel, the impugned judgment is based upon improper

appreciation of evidence, erroneous application of law and

unwarranted inferences drawn from the prosecution case. It was

submitted that the findings recorded by the learned trial Court are

perverse, contrary to settled principles governing criminal

jurisprudence and, therefore, deserve to be set aside by this

Court.

21.Elaborating his submissions, learned counsel contended that the

prosecution itself has failed to establish beyond reasonable doubt

that the victim was below the age prescribed under the provisions

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of the POCSO Act on the date of the alleged incident. It was

argued that the evidence regarding the age of the victim is highly

doubtful and suffers from serious infirmities. Learned counsel

submitted that no authentic birth certificate issued by the

competent authority was produced before the Court and the

prosecution merely relied upon school records, the authenticity

and correctness of which were never independently established. It

was further contended that the medical evidence also does not

conclusively determine the age of the victim, inasmuch as the

doctor did not furnish any definite opinion regarding her age.

According to the learned counsel, in the absence of cogent and

reliable evidence regarding the age of the victim, the learned trial

Court committed a grave illegality in holding that the victim was a

minor and in extending the benefit of the provisions of the POCSO

Act against the appellant.

22.Learned counsel further submitted that the evidence brought on

record clearly suggests that the appellant and the victim were

acquainted with each other and were involved in a consensual

love affair. It was argued that the conduct of the victim, as

emerging from the prosecution evidence itself, indicates that she

had voluntarily accompanied the appellant of her own free will and

was not subjected to any inducement, coercion or force. It was

contended that the surrounding circumstances completely belie

the prosecution story of kidnapping or abduction and, therefore,

the essential ingredients constituting the offences punishable

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under Sections 363, 365, 366-A and 368 of the IPC have not been

established. Learned counsel urged that the learned trial Court

ignored the surrounding circumstances and the probabilities

emerging from the evidence and proceeded to convict the

appellant merely on assumptions and presumptions.

23.Learned counsel next submitted that the findings recorded by the

learned trial Court are perverse and contrary to the evidence

available on record. It was argued that the Court below failed to

appreciate the prosecution evidence in accordance with the

settled principles governing appreciation of evidence in criminal

trials. According to him, the prosecution witnesses have made

material improvements over their earlier statements and their

testimonies suffer from serious contradictions, omissions and

inconsistencies touching the core of the prosecution case. It was

submitted that these material discrepancies create substantial

doubt regarding the truthfulness of the prosecution version;

however, the learned trial Court brushed aside these infirmities

without assigning cogent reasons and proceeded to record

conviction against the appellant. It is further contended that the

impugned judgment is based more on surmises and conjectures

than on legal evidence. Learned counsel submitted that the

prosecution has failed to establish an unbroken chain of

circumstances pointing exclusively towards the guilt of the

appellant. According to him, the evidence adduced by the

prosecution is neither wholly reliable nor of such quality as would

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inspire the confidence of the Court. It was argued that several

material witnesses have not supported the prosecution case in its

entirety, while the testimony of the victim herself does not support

the allegations levelled against the appellant. In these

circumstances, it was submitted that the learned trial Court ought

to have extended the benefit of doubt to the appellant instead of

recording his conviction.

24.Learned counsel also contended that the prosecution has

miserably failed to prove the charges beyond reasonable doubt by

leading trustworthy, cogent and convincing evidence. It was

argued that the prosecution evidence falls far short of the

standard required for recording conviction in a criminal case and,

therefore, the appellant could not have been held guilty merely on

the basis of suspicion or conjectures. It was submitted that the

cardinal principle of criminal jurisprudence that the prosecution

must prove its case beyond all reasonable doubt has not been

adhered to by the learned trial Court while recording the

impugned judgment. Learned counsel lastly submitted that the

essential ingredients constituting the offences punishable under

Sections 363, 365, 366-A, 368 and 376 of the IPC read with

Section 6 of the POCSO Act were not established from the

evidence brought on record. According to him, neither the

ingredients of kidnapping nor those relating to aggravated

penetrative sexual assault have been proved in accordance with

law. It was contended that the learned trial Court has misread the

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evidence, ignored the material inconsistencies appearing in the

prosecution case and has erroneously returned findings of guilt

against the appellant. It was, therefore, prayed that the impugned

judgment of conviction and order of sentence be set aside, the

appellant be acquitted of all the charges levelled against him by

extending the benefit of doubt, and the present appeal be allowed.

25.Per contra, Ms. Anusha Naik, learned Deputy Government

Advocate, appearing for the State, vehemently opposed the

appeal and supported the impugned judgment of conviction and

order of sentence passed by the learned Special Judge (POCSO).

It was submitted that the learned trial Court has meticulously

appreciated the entire oral, documentary, medical and scientific

evidence available on record and has recorded well-reasoned

findings of fact, which do not suffer from any perversity, illegality

or infirmity warranting interference by this Court in exercise of

appellate jurisdiction. According to the learned State counsel, the

impugned judgment is founded upon a proper appreciation of

evidence and settled principles of criminal jurisprudence and,

therefore, calls for no interference.

26.Learned State counsel submitted that the prosecution has been

able to establish beyond all reasonable doubt that the victim was

a minor on the date of the incident. Inviting the attention of this

Court to the evidence of PW-6 Smt. Monica Mudihar, the

Assistant Teacher, and the school admission register seized

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during investigation vide Ex.P/7 and the certified extract Ex.P/9-C,

it was contended that the date of birth of the victim has been duly

proved as 26.05.2006, on the basis of contemporaneous school

records maintained in the ordinary course of official business. It

was argued that the testimony of PW-1, the father of the victim,

and PW-2, the mother of the victim, also consistently establishes

the age of the victim. It was further submitted that the learned trial

Court has rightly relied upon the documentary evidence in view of

the principles laid down by the Hon'ble Supreme Court governing

determination of age under the Juvenile Justice Act and the

POCSO Act. Therefore, the contention of the appellant that the

age of the victim has not been proved is wholly misconceived and

deserves to be rejected.

27.Learned State counsel further submitted that merely because the

victim turned hostile during trial, the entire prosecution case does

not become liable to be discarded. It was argued that the

evidence of a hostile witness is not to be rejected in toto and the

Court is entitled to rely upon such part of the testimony which

inspires confidence and finds corroboration from other reliable

evidence on record. In the present case, although PW-3, the

victim, did not support the prosecution in material particulars, she

categorically admitted her recovery by the police from Ranchi vide

Recovery Panchnama (Ex.P/12) and also admitted her signatures

on the consent memo (Ex.P/13). These admissions, coupled with

the consistent testimony of PW-1, PW-2, PW-7, PW-8, PW-11,

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PW-14 and PW-15, clearly establish that the victim remained in

the custody and company of the appellant from the date of her

disappearance till her recovery. It is further submitted that the

testimony of the parents of the victim, namely PW-1 and PW-2,

inspires complete confidence and has remained substantially

unshaken during cross-examination. Their evidence clearly

establishes that the victim had left her house and thereafter the

appellant took her away from the lawful guardianship of her

parents without their consent. Their version finds complete

corroboration from the testimony of PW-7 Mahendra Ram, who

had seen the appellant accompanying the victim, and PW-8

Jaychand Ram, who also supported the prosecution with regard

to the disappearance of the victim and the subsequent events.

Learned State counsel submitted that these witnesses have no

reason whatsoever to falsely implicate the appellant and their

evidence has rightly been relied upon by the learned trial Court.

28.Learned State counsel further argued that the medical and

scientific evidence fully corroborates the prosecution case.

Referring to the evidence of PW-10 Dr. Kumari Pallavi, it was

submitted that the doctor found the hymen of the victim ruptured,

noticed that she had undergone sexual intercourse and collected

vaginal slides and undergarments for forensic examination. The

testimony of PW-9 Dr. Uday Bhagat further establishes that the

appellant was capable of performing sexual intercourse. Most

importantly, the Forensic Science Laboratory Report (Ex.P/27)

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conclusively establishes the presence of human semen and

spermatozoa on the vaginal slides as well as the undergarments

of the victim. According to the learned State counsel, this scientific

evidence lends complete assurance to the prosecution case and

completely demolishes the defence sought to be raised by the

appellant.

29.Learned State counsel further submitted that the prosecution has

successfully established the recovery of the victim from the

custody of the appellant at Ranchi through the evidence of PW-11

Ishwar Prasad Warle and PW-15 Chandraprakash Tripathi, which

is duly corroborated by the Recovery Panchnama (Ex.P/12). It

was contended that the recovery of the victim from the exclusive

company of the appellant constitutes a vital incriminating

circumstance which the appellant has failed to explain in his

statement recorded under Section 313 of the Cr.P.C. The

appellant has neither furnished any plausible explanation

regarding the circumstances in which the victim remained with

him for several months nor has he adduced any defence evidence

to probabilise his version. She further submitted that the defence

theory of a consensual relationship is legally untenable in view of

the proved minority of the victim. Once the prosecution has

established that the victim was below the prescribed age under

the POCSO Act on the date of occurrence, any alleged consent

on her part becomes wholly immaterial and legally

inconsequential. It was argued that the provisions of the POCSO

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Act are founded upon the principle that a child is incapable of

giving valid consent for sexual activity and, therefore, the plea of

consensual relationship raised by the appellant deserves outright

rejection.

30.Learned State counsel also contended that the alleged

contradictions and omissions highlighted by the appellant are

trivial and relate only to insignificant details which do not affect the

substratum of the prosecution case. It was submitted that the

learned trial Court has rightly distinguished between material

contradictions and normal discrepancies arising from lapse of time

and has assigned cogent reasons for accepting the prosecution

evidence. According to him, no material contradiction has been

brought on record which would create any reasonable doubt

regarding the prosecution story. It is lastly submitted that the

findings recorded by the learned trial Court are based upon a

comprehensive appreciation of the entire evidence on record,

including the ocular testimony of the prosecution witnesses, the

documentary evidence relating to the age of the victim, the

recovery proceedings, the medical evidence and the scientific

evidence. The prosecution has succeeded in proving each and

every ingredient of the offences punishable under Sections 363,

365, 366-A, 368 and 376(2)(i) read with Section 376(3) of the IPC

read with Section 6 of the POCSO beyond all reasonable doubt. It

was, therefore, submitted that the impugned judgment of

conviction and order of sentence are well founded in law and on

21

facts, suffer from no legal infirmity and deserve to be affirmed.

Accordingly, it is prayed that the present criminal appeal be

dismissed.

31.We have heard learned counsel for the parties at length and have

carefully perused the entire record of the trial Court with utmost

circumspection. The submissions advanced on behalf of both

sides have been duly considered in the light of the factual matrix

of the case and the legal principles governing the field. Each

material aspect of the matter has been examined to determine

whether any infirmity, perversity, or jurisdictional error exists in the

impugned order so as to warrant interference by this Court.

32.The first and foremost question that arises for consideration is

whether the victim was a minor, i.e., below 18 years of age, on the

date of the alleged incident ?

33.This issue assumes paramount significance, as the determination

of the victim’s age has a direct bearing on the applicability of the

provisions of the POCSO Act and the corresponding penal

provisions under the IPC. The age of the victim is a foundational

fact, and its correct ascertainment is essential for deciding the

nature of the offence, the culpability of the accused, and the

statutory presumptions that may come into play. Therefore, before

adverting to any other aspect of the matter, it is necessary to

examine, with due care and on the basis of the evidentiary

material available on record, whether the prosecution has

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satisfactorily established that the victim was indeed below 18

years of age at the relevant point of time.

34.We have bestowed our anxious consideration to the evidence

available on record with regard to the age of the victim, since the

determination of her age assumes considerable significance for

attracting the provisions of the POCSO Act. The prosecution has

relied upon both oral and documentary evidence to establish that

the victim was below 16 years of age on the date of the incident.

In this regard, reliance has been placed upon the testimony of

PW-1 the father of the victim, PW-2 her mother, PW-3 the victim

herself, PW-6 Smt. Monica Mudihar, Assistant Teacher of the

school where the victim had studied, and the documentary

evidence comprising the notice issued for production of school

records (Ex.P/6), the seizure memo (Ex.P/7) and, most

importantly, the certified copy of the Admission-cum-Dakhil-Kharij

Register (Ex.P/9-C). As per the said admission register, the date

of birth of the victim is recorded as 26.05.2006.

35.PW-1, the father of the victim, has categorically deposed that the

date of birth of his daughter is 26.05.2006 and that on the date of

occurrence she was about 15 years of age. He further stated that

pursuant to the notice issued by the Investigating Officer (Ex.P/6),

he produced the school admission register before the police,

which was seized vide seizure memo (Ex.P/7). Although, during

cross-examination, he admitted that at the time of admission in

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the school he did not possess any birth certificate or Kotwari

Register extract, nothing substantial could be elicited to discredit

his testimony regarding the age of the victim. His evidence

remained consistent insofar as the date of birth of the victim is

concerned.

36.PW-2, the mother of the victim, has also supported the

prosecution case by stating that at the relevant point of time the

victim was about 15 to 16 years of age. Though she did not

specifically mention the exact date of birth in her deposition, her

testimony fully corroborates the evidence of PW-1 regarding the

minority of the victim at the time of the incident. Her cross-

examination does not disclose any material contradiction which

would cast doubt on the prosecution case regarding the age of the

victim.

37.The victim (PW-3), though she did not support the prosecution on

the material aspects of the occurrence and was declared hostile,

nevertheless admitted in her evidence that her date of birth is

26.05.2006 and that she was about 15 years of age when her

testimony was recorded before the trial Court. Thus, even though

she resiled from her earlier statement with regard to the

occurrence, her testimony lends corroboration to the prosecution

case regarding her age. It is well settled that the evidence of a

hostile witness is not to be discarded in its entirety and such part

24

of the testimony which inspires confidence can certainly be relied

upon.

38.PW-6 Smt. Monica Mudihar, the Assistant Teacher of the school

where the victim had studied, proved the admission register

maintained in the ordinary course of official business. She

deposed that, in compliance with the notice issued by the

Investigating Officer (Ex.P/6), the original admission register was

produced before the police, whereafter its certified copy was

taken on record and the original was returned. She proved the

certified extract of the Admission-cum-Dakhil-Kharij Register

(Ex.P/9-C), wherein the date of birth of the victim has been

recorded as 26.05.2006. She further identified the seizure

proceedings (Ex.P/7) whereby the school records were taken into

possession during investigation. Nothing material has been

elicited in her cross-examination to create any doubt regarding the

genuineness or authenticity of the school records. Merely

because the witness was not the person who had originally made

the entry in the admission register or because she could not state

the basis on which the date of birth was initially entered, the

evidentiary value of the register maintained in the ordinary course

of official duties does not stand diminished. The document is a

public record maintained by the educational institution in

discharge of its official functions and is admissible under Section

35 of the Indian Evidence Act.

25

39.Having considered the entire oral and documentary evidence

available on record, we are of the considered opinion that the

prosecution has satisfactorily established that the victim was a

minor on the date of the incident. The evidence of PW-1, PW-2

and PW-3 finds due corroboration from the documentary evidence

proved through PW-6, particularly the certified extract of the

Admission-cum-Dakhil-Kharij Register (Ex.P/9-C), which records

the date of birth of the victim as 26.05.2006. The incident having

occurred on 23.07.2021, the victim was 15 years, 1 month and 28

days old on the date of occurrence. No evidence whatsoever has

been adduced by the defence to rebut the said documentary

evidence or to establish that the entry regarding the date of birth

was manipulated or fabricated. In the absence of any rebuttal

evidence, the learned trial Court has rightly accepted the school

record as the best available evidence regarding the age of the

victim in accordance with the principles laid down by the Hon'ble

Supreme Court. We, therefore, find no infirmity in the finding

recorded by the learned trial Court that the victim was below 16

years of age on the date of the incident and was, therefore, a

"child" within the meaning of Section 2(1)(d) of the POCSO Act.

40.Very recently, the Hon’ble Supreme Court in the matter of Birka

Shiva v. State of Telangana, 2025 SCC OnLine SC 1454 has

observed as under:

"8. The evidentiary value of such an entry made in

public or official registers may be admissible in

26

evidence under Section 35 of the Indian Evidence

Act, 1872. However, admissibility is distinct from

probative value. While such documents may be

admitted into evidence, their evidentiary weight

depends on proof of their authenticity and the

source of the underlying information. Mere

production and marking of a document as exhibited

by the Court does not amount to proof of its

contents. Its execution has to be proved by leading

substantive evidence, that is, by the ‘evidence of

those persons who can vouchsafe for Hereinafter

referred to as the ‘Evidence Act’ the truth of the facts

in issue’. [See: Narbada Devi Gupta v. Birendra

Kumar Jaiswal] We may refer to a few judicial

pronouncements of this Court in this regard:

8.1. This Court, in Birad Mal Singhvi v. Anand

Purohit, held that the entries contained in the

school register are relevant and admissible but

have no probative value unless the person who

made the entry or provided the date of birth is

examined. It was observed:

“14. … If entry regarding date of birth in the

scholar's register is made on the information given

by parents or someone having special knowledge

of the fact, the same would have probative value.

… 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. The entry contained in the

admission form or the scholar's register must be

shown to be made on the basis of information

given by the parents or a person having special

knowledge about the date of birth of the person

concerned. If the entry in the scholar's register

regarding date of birth is made on the basis of

information given by parents, the entry would

have evidentiary value, but if it is given by a

stranger or by someone else who had no special

means of knowledge of the date of birth, such an

entry will have no evidentiary value. …

15. Section 35 of the Indian Evidence Act lays

down that entry in any public, official book,

register, record stating a fact in issue or relevant

fact and made by a public servant in the discharge

of his official duty specially enjoined by the law of

the country is itself the relevant fact. To render a

document admissible under Section 35, three

27

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 the 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. … The courts have consistently held

that the date of birth mentioned in the scholar's

register or secondary school certificate has no

probative value unless either the parents are

examined or the person on whose information the

entry may have been made is examined…"

(Emphasis Supplied)

This decision has been consistently followed by

this Court in Pratap Singh v. State of Jharkhand;

Babloo Pasi v. State of Jharkhand; Murugan v.

State of T.N.; State of M.P. v. Munna; C.

Doddanarayana Reddy v. C. Jayarama Reddy;

and Manak Chand v. State of Haryana.

8.2. A coordinate Bench of this Court in State of

Chhattisgarh v. Lekhram, through S.B. Sinha, J.,

clarified that though entries in school registers are

admissible under Section 35 of the Evidence Act,

their evidentiary value improves only when

corroborated by oral testimony of persons who are

aware of its content, such as parents or the person

who made the entry at the time of admission. It held

as under:

“12. A register maintained in a school is

admissible in evidence to prove date of birth of the

person concerned in terms of Section 35 of the

Evidence Act. Such dates of births are recorded in

the school register by the authorities in discharge

of their public duty. PW 5, who was an Assistant

Teacher in the said school in the year 1977,

categorically stated that the mother of the victim

disclosed her date of birth. The father of the victim

also deposed to the said effect.

28

13. …The materials on record as regards the age

of the victim were, therefore, required to be

considered in the aforementioned backdrop. It

may be true that an entry in the school register is

not conclusive, but it has evidentiary value. Such

evidentiary value of a school register is

corroborated by oral evidence as the same was

recorded on the basis of the statement of the

mother of the victim."

8.3. Similarly, this Court in Satpal Singh v. State of

Haryana, stated that though a document may be

admissible, but to determine whether the entry

contained therein has any probative value, may still

be required to be examined in the facts and

circumstances of a particular case. It held as follows:

“26. In Vishnu v. State of Maharashtra [(2006) 1

SCC 283 : (2006) 1 SCC (Cri) 217] while dealing

with a similar issue, this Court observed that very

often parents furnish incorrect date of birth to the

school authorities to make up the age in order to

secure admission for their children. For

determining the age of the child, the best

evidence is of his/her parents, if it is supported by

unimpeccable documents. In case the date of

birth depicted in the school register/certificate

stands belied by the unimpeccable evidence of

reliable persons and contemporaneous

documents like the date of birth register of the

municipal corporation, government

hospital/nursing home, etc., the entry in the school

register is to be discarded.

x x x

28. Thus, the law on the issue can be summarised

that the entry made in the official record by an

official or person authorised in performance of an

official duty is admissible under Section 35 of the

Evidence Act but the party may still ask the

court/authority to examine its probative value. The

authenticity of the entry would depend as to on

whose instruction/information such entry stood

recorded and what was his source of information.

Thus, entry in school register/certificate requires

to be proved in accordance with law. Standard of

proof for the same remains as in any other civil

and criminal case.”

29

8.4. In Madan Mohan Singh v. Rajni Kant, this Court

held that the entries made in the official record may

be admissible under Section 35 of the Evidence Act,

but the Court has a right to examine their probative

value. The authenticity of the entries would depend

on whose information such entries stood recorded. It

was held as follows :

“20. So far as the entries made in the official

record by an official or person authorised in

performance of official duties are concerned, they

may be admissible under Section 35 of the

Evidence Act but the Court has a right to examine

their probative value. The authenticity of the

entries would depend on whose information such

entries stood recorded and what was his source of

information. The entries in school register/school

leaving certificate require to be proved in

accordance with law and the standard of proof

required in such cases remained the same as in

any other civil or criminal cases.

21. … For determining the age of a person, the

best evidence is of his/her parents, if it is

supported by unimpeachable documents. In case

the date of birth depicted in the school

register/certificate stands belied by the

unimpeachable evidence of reliable persons and

contemporaneous documents like the date of birth

register of the Municipal Corporation, government

hospital/nursing home, etc., the entry in the school

register is to be discarded. …”

8.5. This Court, in Alamelu v. State, while dealing

with a similar factual matrix, held that the

prosecution had failed to prove that the girl was a

minor at the relevant date since the transfer

certificate of a Government School showing age was

not duly proved by witnesses. It observed as under:

“40. Undoubtedly, the transfer certificate, Ext. P-

16 indicates that the girl's date of birth was 15-6-

1977. Therefore, even according to the aforesaid

certificate, she would be above 16 years of age

(16 years 1 month and 16 days) on the date of the

alleged incident i.e. 31-7-1993. The transfer

certificate has been issued by a government

school and has been duly signed by the

Headmaster. Therefore, it would be admissible in

evidence under Section 35 of the Evidence Act,

1872. However, the admissibility of such a

30

document would be of not much evidentiary value

to prove the age of the girl in the absence of the

material on the basis of which the age was

recorded. The date of birth mentioned in the

transfer certificate would have no evidentiary

value unless the person who made the entry or

who gave the date of birth is examined.

41. We may notice here that PW 1 was examined

in the Court on 9-8-1999. In his evidence, he

made no reference to the transfer certificate (Ext.

P-16). He did not mention the girl's age or date of

birth. PW 2 was also examined on 9-8-1999. She

had also made no reference either to her age or to

the transfer certificate. It appears from the record

that a petition was filed by the complainant under

Section 311 CrPC seeking permission to produce

the transfer certificate and to recall PW 2. This

petition was allowed. … In her cross- examination,

she had merely stated that she had signed on the

transfer certificate, Ext. P-16 issued by the school

and accordingly her date of birth was noticed as

15-6- 1977. She also stated that the certificate

has been signed by the father as well as the

Headmaster. But the Headmaster has not been

examined. Therefore, in our opinion, there was no

reliable evidence to vouchsafe for the truth of the

facts stated in the transfer certificate.”

(Emphasis supplied)

9. In the attending facts, we find that the evidentiary

value of Ex.P11 is significantly undermined in the

absence of corroborating material. We say so for the

following reasons:

(i) PW-13, who is the Headmaster of Zilla Parishad

High School, Chandanapur, Peddapalli District

(erstwhile Karimnagar District), stated that the victim

studied in his school from 2007 to 2013, i.e., 6th

Class to 10th Class and that the Admission Register

records her date of birth as 3rd November 1996.

However, in his cross-examination, he admitted that

he had no personal knowledge as to the source or

basis on which the date of birth was recorded

therein or if the recorded date of birth was correct or

not. The relevant part of his testimony is extracted

hereunder:

“…In our school there is not clerk to maintain

records. I did not produce any certificate pertaining

31

to earlier school I, In which P.W.3 studies up to 5th

Class. There must be basis for entering date of birth

of a student in our school such as her earlier school

record. I do not have personal knowledge as to what

record was produced by parents of P.W. 3 as basis

to enter her date of birth in our school as I was not

Head Master in 2007.

I cannot say in which school P.W.3 studied up to 5th

Class. In the nominal roll register of our school, the

signature of P.W.3 was obtained. I do not have

personal knowledge whether the said date of birth of

P.W.3 was correct or not and I am giving evidence

only on the basis of record.”

(Emphasis Supplied)

(ii) The prosecution has failed to examine the person

who had made the entry in the Admission Register

to ascertain on what basis such an entry was made.

More so, the entry in respect of the date of birth of

the victim in the primary school register, i.e., 1st

Class to 5th Class, has not been produced and

proved before the Courts below to verify the age as

per its records. It is also not possible to ascertain

from the records as to whether the date of birth was

provided by the parents or simply entered at the

behest of another party, without verification, at the

time of admission to Zilla Parishad High School.

(iii) The testimonies of PW-1, PW-2 and PW-3 are

also telling that none of them mentioned the victim's

age with specificity. There is no reference to Ex.P11,

and no attempt was made by the prosecution to

adduce corroborative testimony regarding the

victim's date of birth from her family members.

Thus, while examining the issue at hand, on the

anvil of the principles elucidated above, it is

essential to notice that the prosecution has failed to

toe the line of legal requisites. There is nothing on

record to corroborate the date of birth of the victim

as recorded in the birth certificate (Ex.P11) issued

by the school. Therefore, it cannot be relied upon to

definitely determine the age of the victim and held

with certainty that the victim was below

sixteen/eighteen years of age.

11. Furthermore, none of the victim's family

members, i.e., her mother and brothers have said

anything about the age of the victim in their

32

depositions made in the Court. Even the victim is

effectively silent on this aspect, only stating that she

and her siblings were born approximately two years

apart and thereby making an estimation of their

ages as well as her own. Throughout her deposition,

the victim has remained silent with regard to her

particular date of birth.

12. Well, suffice it to say that Courts of law cannot

make a determination of guilt in thin air, based on

estimations. In the present facts and circumstances,

the proof submitted by the prosecution in the form of

Ex.P11 (birth certificate issued by the school) was

not sufficient to arrive at a finding that the victim was

less than sixteen/eighteen years of age, especially

when such a document was not sufficiently

corroborated. Therefore, it was neither safe nor fair

to convict the appellant based on it, particularly in

the context where the age of the victim was such a

pivotal factor. "

41.Reverting to the facts of the present case in the light of the

aforesaid legal principles, it is evident that the prosecution has

sought to establish the age of the victim primarily on the basis of

the school Dakhil-Kharij Register (Ex.P/9-C), coupled with the oral

testimony of the victim (PW-3), her father (PW-1), her mother

(PW-2), the Assistant Teacher Smt. Monika Mudihar (PW-6), and

the Investigating Officer. According to Ex.P/9-C, the date of birth

of the victim has been recorded as 26.05.2006, on the basis of

which the trial Court concluded that she was aged 15 years, 01

month and 28 days on the date of the alleged incident i.e.

23.07.2021. However, a careful scrutiny of the evidence would

reveal that the prosecution has failed to establish the source or

authenticity of the said entry. PW-1, the father of the victim, has

categorically admitted in his cross-examination that at the time of

admission in the school he did not possess either a birth

33

certificate or Kotwari Register or any authentic record regarding

the date of birth of the victim. Thus, the very foundation on which

the entry in the school register came to be recorded remains

completely unexplained.

42.PW-6, Smt. Monika Mudihar, who was examined to prove the

seizure of the school admission register and its certified copy

(Ex.P/9-C), has merely proved the production and seizure of the

document but has not stated that she had made the entry relating

to the date of birth of the victim or that the same was entered on

the basis of any authentic public document. The prosecution has

not examined the person who originally admitted the victim in the

school or who actually made the relevant entry in the admission

register. No evidence whatsoever has been adduced to establish

the basis on which the date of birth 26.05.2006 came to be

recorded in the school records. Consequently, the school register

remains an unproved document so far as the source of the date of

birth is concerned.

43.It is further significant that although PW-3 (the victim), PW-1 (her

father) and PW-2 (her mother) have stated that the victim was

about 15 to 16 years of age and her date of birth was 26.05.2006,

none of them has disclosed the basis of such assertion. On the

contrary, PW-1 has expressly admitted that at the time of school

admission he had no birth certificate or Kotwari Register. The

prosecution has also failed to produce any municipal birth

34

certificate, Panchayat birth register, hospital birth record,

Anganwadi record, vaccination register, or any contemporaneous

public document to corroborate the alleged date of birth. Thus, the

oral testimony of the parents and the victim merely reiterates the

school entry and does not independently establish the age of the

victim.

44.The Investigating Officer has also admitted that during

investigation he seized only the school Dakhil-Kharij Register after

issuing notice (Ex.P/6) and no effort appears to have been made

to collect the primary documents on the basis of which the date of

birth was originally recorded in the school records. The

prosecution has, therefore, withheld the best available evidence

relating to the age of the victim. It is a settled principle that where

the source document forming the basis of the school entry is

neither produced nor proved, the entry in the school register by

itself cannot be treated as conclusive proof of age.

45.It is also pertinent to note that the victim was medically examined

by PW-10 Dr. Kumari Pallavi. Though the doctor advised

radiological examination for age determination, no ossification test

or any other scientific age determination examination was

ultimately conducted. Consequently, there is no medical opinion

on record corroborating the prosecution's assertion that the victim

was below sixteen or even below eighteen years of age on the

date of occurrence. Thus, the prosecution has also failed to avail

35

the alternative mode of age determination contemplated under

law.

46.The learned trial Court, while recording a finding that the victim

was below sixteen years of age, proceeded solely on the basis of

the school admission register (Ex.P/9-C) and the oral assertions

of the victim and her parents. The trial Court failed to appreciate

that the very source of the entry in Ex.P/9-C remained unproved

and that PW-1 himself admitted absence of any birth certificate or

contemporaneous record at the time of admission. The trial Court

further erred in drawing an adverse inference against the

appellant merely because the defence did not produce any

contrary document. In criminal jurisprudence, the burden always

lies upon the prosecution to prove every foundational fact beyond

reasonable doubt and such burden never shifts merely because

the accused has not adduced defence evidence.

47.In the considered opinion of this Court, the prosecution has failed

to produce cogent, reliable and legally admissible evidence of

sterling quality to conclusively establish that on the date of the

alleged incident the victim was below sixteen years or even below

eighteen years of age. The school Dakhil-Kharij Register (Ex.P/9-

C), unsupported by the foundational documents on the basis of

which the date of birth was recorded, cannot by itself constitute

conclusive proof of age. In the absence of a birth certificate,

Panchayat or municipal records, Kotwari Register,

36

contemporaneous public documents, or a medical opinion

determining age, serious doubt persists regarding the exact age

of the victim. Such doubt must necessarily enure to the benefit of

the appellant in accordance with the settled principles governing

criminal trials.

48.The next question that arises for consideration is whether the

appellant had committed rape upon the victim or not?

49.This issue goes to the very root of the prosecution case and

requires a careful evaluation of the testimony of the victim, the

corroborative medical and forensic evidence, and the surrounding

circumstances brought on record. Since the charge of rape carries

grave penal consequences, the Court must scrutinize the

evidence with due sensitivity while ensuring adherence to the

well-settled principles governing appreciation of evidence in

sexual offence cases.

50.The law is equally clear that the sole testimony of the victim, if

found to be cogent, credible, and trustworthy, is sufficient to

sustain a conviction and does not require further corroboration. At

the same time, the Court must remain mindful that the evidence

must inspire confidence and must not suffer from inherent

improbabilities or material contradictions.

51.Accordingly, to determine whether the offence of rape stands

established, it becomes necessary to examine the version of the

victim, the medical findings, the conduct of the parties, and other

37

attendant circumstances to assess whether the prosecution has

proved the charge beyond reasonable doubt.

52.Very recently, in the matter of Tilku Alias Tilak Singh v. The

State Of Uttarakhand, 2025 INSC 226, the Supreme Court while

dealing with the case of S. Varadarajan Vs. State of Madras,

AIR 1965 SC 942, has held as under :-

“16. Even if the finding of the learned Single Judge

of the High Court that the victim was between 16 to

18 years of age is to be accepted, in our view, the

offence under Sections 363 and 366 IPC would still

not be made out.

17. This Court in the case of S. Vardarajan v. State

of Madras had an occasion to consider almost

similar facts that arise for consideration in the

present case. This Court has observed thus:

“7. …..It will thus be seen that taking or enticiting

away a minor out of the keeping of a lawful

guardian is an essential ingredient of the offence

of kidnapping. Here, we are not concerned with

enticement but what we have to find out is

whether the part played by the appellant amounts

to “taking” out of the keeping of the lawful

guardian of Savitri. We have no doubt that though

Savitri had been left by S. Natarajan at the house

of his relative K. Nataranjan she still continued to

be in the lawful keeping of the former but then the

question remains as to what is it which the

appellant did that constitutes in law “taking”.

There is not a word in the deposition of Savitri

from which an inference could be drawn that she

left the house of K. Natarajan at the instance or

even a suggestion of the appellant. In fact she

candidly admits that on the morning of October

1st, she herself telephoned to the appellant to

meet her in his car at a certain place, went up to

that place and finding him waiting in the car got

38

into that car of her own accord. No doubt, she

says that she did not tell the appellant where to

go and that it was the appellant himself who

drove the car to Guindy and then to Mylapore and

other places. Further, Savitri has stated that she

had decided to marry the appellant. There is no

suggestion that the appellant took her to the Sub-

Registrar's office and got the agreement of

marriage registered there (thinking that this was

sufficient in law to make them man and wife) by

force or blandishments or anything like that. On

the other hand the evidence of the girl leaves no

doubt that the insistence of marriage came from

her side. The appellant, by complying with her

wishes can by no stretch of imagination be said to

have taken her out of the keeping of her lawful

guardian. After the registration of the agreement

both the appellant and Savitri lived as man and

wife and visited different places. There is no

suggestion in Savitri's evidence, who, it may be

mentioned had attained the age of discretion and

was on the verge of attaining majority that she

was made by the appellant to accompany him by

administering any threat to her or by any

blandishments. The fact of her accompanying the

appellant all along is quite consistent with Savitri's

own desire to be the wife of the appellant in which

the desire of accompanying him wherever he

went was course implicit. In these circumstances

we find nothing from which an inference could be

drawn that the appellant had been guilty of taking

away Savitri out of the keeping of her father. She

willingly accompanied him and the law did not

cast upon him the duty of taking her back to her

father's house or even of telling her not to

accompany him. She was not a child of tender

years who was unable to think for herself but, as

already stated, was on the verge of attaining

majority and was capable of knowing what was

good and what was bad for her…….”

18. It is thus clear that the victim, who according

to the learned Single Judge of the High Court,

was between 16 to 18 years of age was very

39

much in the age of understanding as to what was

right and wrong for her.”

53.PW-1, the father of the victim, has deposed that he was residing

at Village Sanna, whereas his elder brother along with his family

was residing in their ancestral house situated at Village Jaymarga.

The appellant was not a stranger to the family, but was a near

relative/close family acquaintance, being a resident of the same

village and closely connected through his maternal uncle, Sugan

Lal, whose house was situated at Jaymarga. According to PW-1,

on 23.07.2021, the victim left their house stating that she was

going to the ancestral house at Village Jaymarga. However,

instead of going there, she went to the house of Sugan Lal and

started residing there along with the appellant. Upon receiving

information regarding the same, PW-2, the mother of the victim,

immediately proceeded to Village Jaymarga, brought the victim

from the house of Sugan Lal and left her at the house of PW-8

(the elder paternal uncle of the victim), before returning to Village

Sanna. On the following day, PW-7 informed him over telephone

that the appellant had again taken away the victim from the house

of PW-8. Thereafter, PW-1 immediately rushed to Jaymarga along

with his nephew, searched for the victim and the appellant, but

both had disappeared. Despite making every possible effort to

trace her whereabouts, she could not be located, whereafter he

lodged the First Information Report (Ex.P/1). PW-1 has further

deposed that after about six months the police informed him that

the victim had been recovered from Piska More, Ranchi

40

(Jharkhand) from the custody and company of the appellant. He

identified his signatures on the Supurdnama (Ex.P/2), consent

memo for medical examination (Ex.P/3), spot map (Ex.P/4), notice

for production of school records (Ex.P/6), seizure memo of the

school admission register (Ex.P/7), and also proved the seizure of

the school Dakhil-Kharij Register. During his cross-examination,

PW-1 admitted that when the victim was admitted to school, he

did not possess any birth certificate, Kotwari Register or any other

authentic document evidencing her date of birth. He also admitted

that on the date when the victim left home, she had informed the

family that she was going to Jaymarga. He denied the suggestion

that he bore any animosity towards the appellant or that a false

report had been lodged because he disapproved of the appellant.

He also denied the defence suggestion that the victim had

voluntarily accompanied the appellant of her own free will.

54.PW-2, the mother of the victim, has substantially corroborated the

testimony of PW-1. She deposed that after receiving information

that the victim was staying at the house of the appellant's

maternal uncle, Sugan Lal, she immediately went to Jaymarga

and found the victim in the company of the appellant at the said

house. She thereafter brought the victim from there and left her at

the house of PW-8 before returning to Village Sanna. On the

following day, PW-7 telephonically informed the family that the

appellant had again taken away the victim. Despite repeated

searches by the family members, the victim remained untraceable

41

for several months. Subsequently, the police informed them that

both the victim and the appellant had been found at Ranchi,

Jharkhand, from where they were brought back to Jashpur. PW-2

proved the Supurdnama (Ex.P/2) whereby custody of the victim

was restored to her parents and also proved the consent memo

(Ex.P/11) for the medical examination of the victim. In her cross-

examination, PW-2 admitted that before leaving home the victim

had stated that she was going to Jaymarga. She also admitted

that when she visited Jaymarga she had met the victim there and

had stayed with her for one night before returning to Sanna. She

denied the suggestion that she had intentionally left the victim

behind or that the victim had voluntarily gone away with the

appellant.

55.The victim (PW-3), however, did not support the prosecution case

during trial and was declared hostile. In her examination-in-chief,

she categorically denied that the appellant had abducted her or

had taken her away on the promise of marriage. She further

denied that the appellant had ever committed sexual intercourse

with her or had taken her to the house of his maternal uncle or his

sister. She stated that although she had gone to Ranchi during

July, 2021, she had not gone there with the appellant.

Nevertheless, she admitted that she had been recovered by the

police from Piska More, Ranchi, and that the Recovery

Panchnama (Ex.P/12) had been prepared in her presence. She

also admitted her signatures on the consent memo for medical

42

examination (Ex.P/13) and acknowledged that after her recovery

she was handed over to her parents under Supurdnama (Ex.P/2).

56.After being declared hostile, the victim was extensively cross-

examined by the Public Prosecutor. She denied that she had

become acquainted with the appellant in December, 2020, that

they had exchanged mobile numbers, or that she had been in

regular telephonic contact with him. She further denied that on the

appellant's asking she had gone to Manora, from where the

appellant took her to the house of his maternal uncle at Jaymarga

and established physical relations with her on the assurance of

marriage. She also denied that thereafter the appellant had taken

her to the house of his sister at Village Dumri and subsequently to

Ranchi, where they stayed together for about one month and the

appellant repeatedly subjected her to sexual intercourse against

her will. She specifically denied having made any such statements

before the police. However, she admitted that the police had

recovered her from Ranchi and that several documents bore her

signatures, though she asserted that the contents thereof had

neither been read over nor explained to her before obtaining her

signatures.

57.PW-7, Mahendra Ram, the maternal uncle of the victim, has

substantially supported the prosecution case. He deposed that on

the relevant day he had seen the victim in the company of the

appellant proceeding towards the house of Sugan Lal. When he

43

requested that she be sent back, the appellant assured him that

she would shortly return. Thereafter, when PW-7 himself went to

bring the victim back, he found her at the house of Sugan Lal.

According to him, when he asked the victim to accompany him,

the appellant intervened, asserted that the victim was his wife,

objected to her being taken away, quarrelled with him and even

picked up an axe. Despite repeated requests, the appellant

refused to allow the victim to accompany him. Subsequently,

when PW-7 again visited the appellant's house, both the appellant

and the victim had disappeared. He thereafter informed PW-1

about the incident. During cross-examination, PW-7 reaffirmed

that on 25.07.2021 he had seen the victim accompanying the

appellant and had immediately informed PW-1 over telephone. He

denied the suggestion that the appellant had not taken away the

victim or that she had voluntarily remained with him.

58.PW-8, the elder paternal uncle of the victim, though declared

hostile, admitted several material circumstances supporting the

prosecution case. He admitted that the victim had come to Village

Jaymarga but, instead of coming to his house, had gone to the

house of Sugan Lal where the appellant was residing. He further

admitted that PW-2 had brought the victim from the house of

Sugan Lal and left her at his residence. He also admitted that on

the following day the appellant again took away the victim from his

house, whereafter she remained untraceable and ultimately a

report was lodged with the police.

44

59.PW-9, Dr. Uday Bhagat, who medically examined the appellant on

06.12.2021, found that the appellant possessed fully developed

secondary sexual characteristics and was physically capable of

performing sexual intercourse. He proved the requisition memo

(Ex.P/16), the medical examination report (Ex.P/17), and the

prescribed medical proforma (Ex.P/18).

60.PW-10, Dr. Kumari Pallavi, conducted the medical examination of

the victim on 06.12.2021 pursuant to the police requisition. She

deposed that the victim was physically and mentally healthy and

that no external injuries were present on her body. On genital

examination, she found no fresh injuries or bleeding; however, the

hymen was torn and two fingers could be introduced easily into

the vagina. Vaginal slides and the undergarment of the victim

were collected, sealed and handed over to the police for forensic

examination. She opined that the victim had already undergone

sexual intercourse, though she advised forensic examination for

giving a conclusive opinion regarding recent sexual intercourse.

She proved the requisition memo (Ex.P/19), the medical

examination report (Ex.P/20), and the prescribed medical

proforma (Ex.P/21). During cross-examination, she clarified that

although she was of the opinion that the victim had undergone

sexual intercourse, a definite opinion regarding its recency could

only be given after receipt of the forensic report.

45

61.PW-11 and PW-15, the Investigating Officers, have deposed in

detail regarding the investigation conducted by them. They proved

the registration of the FIR (Ex.P/1), preparation of the spot map

(Ex.P/4), issuance of notice for production of the school admission

register (Ex.P/6), seizure of the school Dakhil-Kharij Register

(Ex.P/7), recovery of the victim from the custody of the appellant

at Piska More, Ranchi under the Recovery Panchnama (Ex.P/12),

seizure of the vaginal slides and undergarments (Ex.P/23),

forwarding of the victim for recording of her statement under

Section 164 CrPC (Ex.P/24), requisition for preparation of the

Patwari map (Ex.P/26), and forwarding of the seized articles to

the Regional Forensic Science Laboratory for examination. The

vaginal slides and undergarments collected during the medical

examination of the victim were thereafter forwarded to the

Regional Forensic Science Laboratory for scientific examination.

As reflected in the Forensic Science Laboratory Report (Ex.P/27),

human semen and spermatozoa were detected on the vaginal

slides as well as on the undergarment of the victim. The learned

trial Court placed considerable reliance upon the said forensic

report, read conjointly with the medical evidence of PW-10, the

recovery of the victim from the company and custody of the

appellant after several months, and the surrounding

circumstances established through the testimonies of PW-1, PW-

2, PW-7 and PW-8. The trial Court ultimately concluded that the

appellant, who was a near relative and a person well known to the

46

victim and her family, had taken advantage of the trust reposed in

him, abducted the minor victim from the lawful guardianship of her

parents, kept her in his custody at different places including

Ranchi, and repeatedly subjected her to sexual intercourse during

the period from 23.07.2021 until her recovery on 05.12.2021,

notwithstanding the fact that the victim resiled from her earlier

statements during the course of trial.

62.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 leveled against the

appellant beyond reasonable doubt, which the prosecution has

failed to do so in the instant case.

63.Therefore, in the facts and circumstances of the present case, this

Court is of the considered opinion that it would not be safe to

sustain the conviction of the appellant for the offence of rape

merely on the basis of assumptions and presumptions. The victim

herself, who is the star witness of the prosecution, has not

supported the prosecution case in any material particular. She has

categorically denied that the appellant had abducted her, taken

her away on the promise of marriage, or committed sexual

47

intercourse with her. Though she admitted that she was recovered

by the police from Ranchi and identified her signatures on certain

documents, she specifically stated that the contents thereof had

neither been read over nor explained to her. Once it has already

been held that the prosecution has failed to establish beyond

reasonable doubt that the victim was below eighteen years of age

on the date of the alleged occurrence, her consent assumes legal

significance. In such circumstances, it cannot automatically be

presumed that every act of sexual intercourse, if any, was against

her will or without her consent, particularly when the victim herself

has completely denied the allegations.

64.Having bestowed anxious consideration to the rival submissions

and having carefully reappreciated the entire evidence available

on record, this Court finds that the prosecution has failed to

establish the charge under Section 376 IPC beyond reasonable

doubt. Although it is well settled that conviction can be based on

the sole testimony of the victim if it inspires confidence and is of

sterling quality, in the present case the victim has completely

resiled from the prosecution story and has not supported the

allegations either of kidnapping or of forcible sexual intercourse.

The prosecution, therefore, is left to rely upon circumstantial,

medical and scientific evidence, which by themselves do not

complete the chain necessary for recording conviction.

48

65.It is significant to notice that the appellant was not a stranger but

was a near relative/close family acquaintance of the victim and

her family. The evidence of PW-1, PW-2 and PW-7 itself

demonstrates that both families were known to each other and the

appellant used to visit the house of his maternal uncle Sugan Lal

situated in Village Jaymarga. The victim was admittedly recovered

after several months from Ranchi; however, during trial she

specifically denied that she had gone to Ranchi with the appellant,

denied that the appellant had taken her away from the lawful

guardianship of her parents, and further denied that he had

established physical relations with her. Thus, the very foundation

of the prosecution story stands demolished by its own principal

witness.

66.The medical and scientific evidence also does not carry the

prosecution case to its logical conclusion. PW-10 Dr. Kumari

Pallavi found that the hymen of the victim was ruptured and

opined that she had undergone sexual intercourse. The Forensic

Science Laboratory report detected human semen and

spermatozoa on the vaginal slides and undergarments of the

victim. However, neither the medical evidence nor the FSL report

identifies the appellant as the person responsible for the said

intercourse. The scientific evidence merely establishes that the

victim had engaged in sexual intercourse at some point of time; it

does not prove, either independently or in conjunction with other

evidence, that such intercourse was with the appellant or that it

49

was against her will and without her consent. In the absence of a

trustworthy ocular account from the victim herself, the medical

and forensic evidence remains only corroborative in nature and

cannot, by itself, establish the guilt of the appellant.

67.The evidence of PW-1 and PW-2, being the parents of the victim,

and that of PW-7 and PW-8, is confined substantially to the

circumstances relating to the disappearance of the victim and her

subsequent recovery. None of these witnesses had any personal

knowledge regarding the alleged commission of rape. Their

evidence cannot substitute the direct testimony of the victim, who

has not only failed to support the prosecution case but has

expressly denied the allegations attributed to the appellant. Their

evidence is, therefore, insufficient to establish the offence under

Section 376 IPC beyond reasonable doubt.

68.It is trite that while the testimony of a victim ordinarily commands

great weight and does not require independent corroboration if

found trustworthy, the Court must nevertheless be satisfied that

such testimony inspires complete confidence. In the present case,

the victim has not merely made certain omissions or minor

contradictions; rather, she has altogether repudiated the

prosecution version and has denied every material allegation

against the appellant. The prosecution has thus failed to produce

any substantive evidence establishing either forcible sexual

intercourse or absence of consent. Further, once the prosecution

50

has failed to establish that the victim was a child within the

meaning of Section 2(1)(d) of the POCSO Act, the statutory

presumptions available under the Act also cease to operate. The

principles reiterated by the Hon'ble Supreme Court in Tilku @

Tilak Singh (supra), following S. Varadarajan (supra), also

assume significance in the facts of the present case.

69.On an overall appreciation of the evidence, this Court is satisfied

that the prosecution has failed to establish an unbroken chain of

circumstances pointing exclusively towards the guilt of the

appellant. The victim has not supported the prosecution; the

documentary evidence relating to her age has been found

unreliable; the medical and forensic evidence only indicates that

sexual intercourse had taken place but does not establish either

the identity of the appellant as the perpetrator or the absence of

consent; and there is no other independent evidence sufficient to

sustain the conviction. These circumstances, taken cumulatively,

create a serious and reasonable doubt regarding the prosecution

story.

70.It is a cardinal principle of criminal jurisprudence that suspicion,

however grave or strong, can never substitute legal proof. The

burden always rests upon the prosecution to establish every

essential ingredient of the offence beyond reasonable doubt, and

such burden never shifts. Where the evidence admits of two

51

reasonably possible views, the one favourable to the accused

must necessarily prevail.

71.In view of the foregoing discussion, this Court is of the considered

opinion that the prosecution has failed to prove beyond

reasonable doubt the offences punishable under Sections 363,

365, 366-A, 368 and 376(2)(i) read with Section 376(3) of the IPC

read with Section 6 of the POCSO Act. The prosecution has failed

to establish the minority of the victim, has further failed to prove

that she was taken away by the appellant by force or inducement,

and has also failed to establish that the appellant committed

penetrative sexual assault upon her against her will or without her

consent.

72.Consequently, this Court is of the considered opinion that the

prosecution has failed to prove its case against the appellant

beyond all reasonable doubt. The appellant is, therefore, entitled

to the benefit of doubt and deserves to be acquitted of all the

charges for which he has been convicted by the learned trial

Court.

73.Accordingly, the appeal deserves to and is hereby allowed. The

judgment of conviction and order of sentence dated 22.04.2024

passed by the learned trial Court, is set aside. The appellant is

acquitted of all the charges levelled against him. The appellant is

reported to be in custody. He shall be released forthwith, if his

detention is not required in connection with any other case.

52

74.Keeping in view the provisions of Section 437-A 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.

75.The trial Court record along with the copy of this judgment be sent

back forthwith to the trial Court concerned for compliance and

necessary action.

Sd/- Sd/-

(Ravindra Kumar Agrawal) (Ramesh Sinha)

Judge Chief Justice

Anu