ANURADHA v. State of Chhattisgarh Through S.H.O. Thana - Khairagarh, District

Judgment

1. Heard Mr. Samir Singh, learned counsel, appearing on behalf of the appellant as well as Mr. Nitansh Jaiswal, learned Panel lawyer appearing on behalf of the State/respondent.

2. This appeal is directed against the judgment of conviction and order of sentence dated 18.03.2024 passed by Special Sessions 2 Judge, Khairagarh, District Khairagarh-Chhuikhadan-Gandai, Chhattisgarh in Special Sessions Case No.04 of 2021 whereby the appellant has been convicted and sentenced as under: Conviction Sentence Under Section 363 of Indian Penal Code, 1860 Rigorous imprisonment for 7 years and fine of Rs.1,000/-, in default of payment rigorous additional imprisonment for 1 month fine, Under Section 366 of Indian Penal Code, 1860 Rigorous imprisonment for 10 years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 1 month In violation of Section 3, under Section 4 of the Protection of Children from Sexual Offences Act, 2012 Rigorous imprisonment for 20 years and fine of Rs.2,000/-, in default of payment of fine, additional rigorous imprisonment for 2 years Both the sentences were directed to run concurrently.

3. Learned State counsel submits that notice issued to the complainant/victim (PW-2) has been served to her, but none has appeared on her behalf to contest the present appeal.

4. Brief facts of the case are that, on 24.12.2020 at about 6.05 PM, the the prosecutrix lodged FIR (Ex.P/3) before the Police Station- Khairagarh, District- Rajnandgaon (C.G.) against the appellant alleging that she had studied up to class 10th and her date of birth was 03.11.2003. Prior three years ago, her cousin was married to the accused, who was residing at Kaurinbhatha and they have issueless. One year before the date of incident, she went to her 3 cousin's house, where accused had told her that he would kill her wife as she was not having a child and used to marry her. On

20.12.2020, she had gone to their village as there was a mandai with her brother. The accused was also present there and during the relevant time, at about 2.00 AM, the accused took her to the courtyard and forcibly made physical relations after luring her and threatened her not to tell anyone about the incident, due to which, she got scared. It is further case of the prosecution that the accused took her on his motorcycle to his house at Kaurinbhatha and many other places. Meanwhile, when her parents got the information, they came to Rajnandgaon to picked her up and only then, she narrated the incident to them. Thereafter, wheels of investigation was started running and crime details form has been prepared vide Ex.P/6. Statement of the prosecutrix under Section 164 of the Cr.P.C. was recorded vide Ex.P/8. Subsequently, after giving consent of the mother vide Ex.P/1 and Ex.P/4, the prosecutrix was subjected to medical examination, which was conducted by Dr. Nikita Girpunje (PW-9). Medical examination report of the prosecutrix is Ex.P/5. She was advised for X-ray and UPT test. Two vaginal swab slides of the prosecutrix was seized vide Ex.P/8A0. Underwear of the prosecutrix was seized vide Ex.P/2. Medical examination of the appellant was conducted by Dr. Vivek Bisen (PW-8), who gave its report vide Ex.P/9. A copy of Dakhil-kharij of Government Primary School, Pachpedi is 4 Ex.P/13C, in which, date of birth of the prosecutrix was mentioned as 03.11.2003. Motorcycle Activa of the appellant was seized vide Ex.P/15 and underwear of the appellant was seized vide Ex.P/14. The appellant was arrested on 25.12.2020 at about 1.30 PM vide arrest memo vide Ex.P/16. After seizure of the items, the seized items were sent for its chemical examination to FSL and FSL report was sought from the forensic expert vide Ex.P/20, which was found to be negative.

5. Statements under Section 161 of the Cr.P.C. of the witnesses were recorded by the police and the statement of the prosecutrix under Section 164 of the of the Cr.P.C. was also recorded. After completing the entire investigation, charge-sheet was filed before the Judicial Magistrate (ACJM), Khairagarh, Rajnandgaon, for the commission of offence punishable under Sections 363, 366, 376 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) as well as Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”).

The trial Court has framed charges under Sections 363 and 366 of the IPC as well as in violation of Section 3, Section 4 of the POCSO Act. During trial, the prosecution has examined as many as 16 witnesses and exhibited 20 documents Exs .P/1 to P/20. 5

7. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence this appeal.

8. Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the present case. The prosecution has completely failed to prove the guilt of the appellant. He further submits that there are so many contradiction and omission in the statement of the prosecution witnesses. The prosecution has completely failed to prove the age of the prosecutrix that on the date of the incident, the prosecutrix was minor. In fact, the prosecutrix herself has accompanied the appellant, therefore, the conviction of the appellant is not sustainable and the appellant should be acquitted of the charges framed against him.

9. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the prosecutrix and other witnesses are fully reliable. There are sufficient evidence available on record to hold the appellant guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference. 6

10. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.

11. The first and foremost question arose for the consideration would be whether the prosecutrix was minor and less than 18 years of age on the date of incident or not ?

12. In order to consider the age of the prosecutrix, we have examined the evidence available on record. The prosecution has mainly relied upon Dakhil-kharij Register (Ex.P/13C), statements of mother of the prosecutrix Ankalhin Mahilange (PW-1), prosecutrix herself (PW-2), father of the prosecutrix Kumbhkaran Mahilange (PW-3) and Sushma Choure (PW-13) Assistant Teacher of Government Primary School, Pachpedi. According to the Dakhil- kharij Register (Ex.P/13C), the date of birth of the prosecutrix is

03.11.2003.

13. The mother of the prosecutrix Ankalhin Mahilange (PW-1) has deposed in her statement that the date of birth of her daughter is

03.11.2003. In cross-examination, she has admitted that she did not know in which year, she has admitted her daughter in the school and she has further admitted that she was admitted her daughter in the school when she was 6 years of age. She further admitted that she has not produced the Kotwari Panji of her daughter. 7

14. The prosecutrix (PW-2) in her statement has stated that her date of birth is 03.11.2003 and she studied in Class X. In cross- examination, she has admitted that her Kotwari Panji was in the house, but the same was not produced before the Court.

15. The father of the prosecutrix Kumbhkaran Mahilange (PW-3) has stated in his evidence that the date of birth of his daughter is

03.11.2003. In cross-examination, though he has denied that at the time of admission in the school, date of birth of his daughter was registered on assumption basis, but he has admitted that he has not produced the birth certificate of his daughter at the time of admission in the school.

16. Sushma Choure (PW-13), who is Assistant Teacher of Government Primary School, Pachpedi has deposed that as per Registration No.961, Serial No.20 of the Dakhil-kharij Register, the date of birth of the prosecutrix is 03.11.2003. In cross- examination, she has deposed that she did not know the fact that date of birth of prosecutrix was registered on assumption basis or not.

17. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecutrix so as to hold that on the date of incident she was minor and below 18 8 years of age. Only on the basis of school Dakhil-kharij register, it would not be safe to hold that the prosecutrix was minor on the date of incident. The statement of the prosecutrix, as also the statement of PW-13 Sushma Choure, Assistant Teacher of Government Primary School, Pachpedi are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 03.11.2003.

18. 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." 9

19. 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, 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 10 entry or who gave the date of birth is examined....Merely because 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 11 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 12 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 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 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 13 right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

20. 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 14 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, 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 15 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 16 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."

21. 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 para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate 17 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 18 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 19 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."

22. Reverting to the facts of the present case. the prosecutrix (PW-2) has stated in her deposition that her date of birth is 03.11.2003. Her mother (PW-1) and father (PW-3) has deposed that the date 20 of birth of the prosecutrix is 03.11.2003, but in their cross- examinations, they have admitted that they have not produced the birth certificate and Kotwari Panji before the school at the time of admission of her daughter. Assistant Teacher Sushma Choure (PW-13) though has admitted that in the Dakhil-kharij Register (Ex.P/13C), date of birth of the prosecutrix has been mentioned as 03.11.2003, but in cross-examination, he has stated that on what basis the date of birth of the prosecutrix was recorded in the school, she did not know.

23. Except for these evidences, no other evidence like Kotwari register or birth certificate have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses i.e. Ankalhin Mahilange (PW-1) prosecutrix herself (PW-2), Kumbhkaran Mahilange (PW-3) and Sushma Choure (PW-13) and also Dakhil-kharij Register (Ex.P/13C) are not sufficient to hold that the prosecutrix was minor on the date of incident because of the reason that no documents has been shown to ascertain the fact that on what basis the date of birth of the prosecutrix was recorded. The entry with regard to age of the prosecutrix has been mentioned in the Dakhil-kharij Register (Ex.P/13C) is not sufficient to hold actual date of birth of the prosecutrix. There is every possibility that the date of birth of the prosecutrix is recorded on assumption otherwise, the prosecution 21 must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the prosecutrix are not of that sterling quality which is sufficient to determine the age of the prosecutrix. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor.

24. The next question for consideration would be whether the appellant has committed rape upon her or not ?

25. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Para 9 and Para 10 of its judgment that:- “9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused 22 person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

10. It would, however, be sufficient if the prosecution establishes though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".

26. PW-2, prosecutrix has deposed in her statement that prior to three 23 years of the date of incident, her cousin was married to the accused, who was residing at Kaurinbhatha and they have issueless. One year before the date of incident, she went to her cousin's house, where accused had told her that he would kill her wife as she was not having a child and used to marry her. On

20.12.2020, she had gone to their village as there was a mandai with her brother. The accused was also present there and during the relevant time, at about 2.00 AM, the accused took her to the courtyard and forcibly made physical relations after luring her and threatened her not to tell anyone about the incident, due to which, she got scared. She further stated that the accused took her on his motorcycle to his house at Kaurinbhatha and many other places. Meanwhile, when her parents got the information, they came to Rajnandgaon to picked her up and only then, she narrated the incident to them. In cross-examination, she has admitted that she had gone to village Thelkadih to meet the accused and she decided that they will go to Rajnandgaon and got married as well as lived there. Thereafter, they had gone to Rajnandgaon with the accused. She further admitted that the accused had taken her elder sister to Thelkadih stating therein that he will kill her.

27. Ankalhin Mahilange (PW-1), mother of the prosecutrix has deposed in her evidence that on 23.12.2020, at about 2.00 PM, 24 the victim/prosecutrix had gone somewhere without informing her, then she called her father Vishal Bharti at about 6.00 PM and asked him that if the victim was there, then her father stated that she was not here. When her daughter was found, she stated about the incident and told her that accused was established physical relation with her. In cross-examination, she has admitted that accused used to visit our house frequently as he was a family member and she had no personal knowledge that with whom, her daughter had gone. She further deposed that when her daughter was not found, they lodged a missing report. She further admitted that her daughter reached Rajnandgaon, she went to the house of accused Narendra Lahare.

28. Kumbhkaran Mahilange (PW-3), father of the prosecutrix has deposed that in the month of December, his brother's son-in-law, accused Narendra Lahare, kidnapped her daughter and took her from Thelkadih to his village Kaurinbhatha, Rajnandgaon. They searched for the victim here and there, then our father-in-law, who lived at village Kaurinbhatha, told them that their daughter i.e. victim was at village Kaurinbhatha, Rajnandgaon with accused Narendra Lahare, thereafter, they went to village Kaurinbhatha Rajnandgaon with the family and brought the victim back to their house Pachpedi. Upon questioning, the prosecutrix stated them that on 20.12.2020, she and accused Narendra Lahare had gone to see the fair at the house of his elder daughter, who lived in 25 village Ragra, that on the same night, the accused Narendra Lahare seduced her and committed sexual intercourse with her. on the pretext of marriage. In cross-examination, she has admitted that accused Narendra is his nephew's son-in-law and he used to visit our house frequently. He further admitted that there was made fun between the accused and the victim as they are brother-in-law and sister-in-law. He admitted that they did not inform the police about the victim and accused being lived in Kaurinbhatha.

29. Dr. Sushma Gond (PW-9) has deposed in her statement that the prosecutrix was brought before her for medical examination on

24.12.2020 at about 7.30 PM. She did not find any injury in the external or internal part of the prosecutrix. She found that vaginal area of the victim was loosened, hymen was torn and labia minora was normal. She further found posterior was normal. She has advised for radiologist examination for X-ray and UPT test for determining the age of the prosecutrix.

30. Further, seized articles were sent for its chemical examination to FSL and according to the FSL report (Ex.P/20), semen stains and human sperm were not found on the given articles. As such, FSL report is found to be negative.

31. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that 26 the appellant has committed rape upon her, rather it reflects from the evidence that the prosecutrix herself went along with the appellant because while she has not made any complaint to anyone and has not raised any alarm while she was in the house. Had she been forcefully raped against her will or consent, she would definitely raise alarm or to make complaint to anyone. Since, it is held that the prosecutrix is not below the 18 years of age, she is capable to give her consent and therefore, it cannot be said that the appellant procured a minor girl with the intention to illicit intercourse or committed rape upon her.

32. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix 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.

33. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt. 27

34. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 18.03.2024 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith, if not required in any other case.

35. 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.

36. The 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/- (Ravindra Kumar Agrawal) Judge Sd/- d/- (Ramesh Sinha) Chief Justice Anu