Baiharsari, Chowki Podi, Police Station - Bodala, District - Kabirdham (C.G.) vs For Appellants(s)

Judgment

1. Vide order dated 22.10.2024 the notice issued to the complainant/prosecutrix (PW-2) has been served upon her, but one one appears on her behalf to contest the application for suspension of sentence or grant of bail or the appeal, therefore, with the consent of the parties the matter has been heard finally at the motion stage itself.

2. Challenge in the present appeal, filed under Section 415(2) of Bhartiya Nagrik Suraksha Sanhita, 2023, is the impugned judgment of conviction and sentence dated 14.08.2024 passed by the learned Additional Sessions Judge 2 (FTC)/Special Court, under the Protection of Children from Sexual Offences Act, 2012, Kabirdham (C.G.) in Special Sessions Case No. 49/2024, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentences U/s 363 of I.P.C. RI for 5 years and fine amount of Rs. 200/-, in default of payment of fine amount, additional RI for 01 month. U/s 366 of I.P.C. RI for 5 years and fine amount of Rs. 200/-, in default of payment of fine amount, additional RI for 01 month. U/s 6 POCSO Act of IPC RI for 20 years and fine amount of Rs. 500/-, in default of payment of fine amount, additional RI for 02 months. All the sentences shall run concurrently.

Brief facts of the case are that the grandfather of the victim (PW-2) lodged a missing report Ex.-P/4 on 01.01.2024 that his grand daughter is missing since the intervening night of 31.12.2023 and 01.01.2024 and despite her search in nearby places and relatives house, her whereabouts could not be traced out. During her search, he saw the photograph of her grand daughter along with the present appellant in the mobile phone, therefore, he raised suspicion upon the appellant that he kidnapped her minor grand daughter. On the report made by the grand father of the victim, the F.I.R. Ex.-P/5 was registered against the appellant for the offence under Section 363 of I.P.C. and the police started investigation. During the investigation the victim was recovered on 02.01.2024 from the possession of the appellant and recovery panchanama Ex.-P/1 was prepared in presence of the witnesses. The victim was sent for her medical examination to District Hospital Kabirdham where PW-12 Dr. Parkhi Dhruw has medically examined her and gave report Ex.- P/26 during her medical examination the doctor have not noticed any external injuries on her body and opined that the definite opinion can be given for sexual assault. Two slides of her vaginal swab were prepared, 3 sealed and handed over to the police for its chemical examination. The victim was also advised for UPT and x-ray of B/L long bone for age determination. Spot map Ex.-P/6 was prepared by the police and Ex.-P/7 was prepared by the Patwari. With respect to the age and date of birth of the victim, the police has seized the school register from Government Primary School Baiharsari vide seizure memo Ex.-P/13 and after retaining the attested true copy of the school register Ex.-P/12-C, the original register was return back to the school. The appellant was arrested on 02.01.2024 and he too was sent for his medical examination to Government Hospital, Bodla where he was also examined by Dr. Gopeshwar Chandravanshi who found him able to do sexual intercourse. The vaginal slides of the victim, her underwear and the underwear of the appellant were sent for chemical examination to FSL Raipur from where report Ex.-P/25 was received. As per the FSL report the semen and sperm were found in the vaginal slides of the victim, however, no sperms and semen were found in the underwear of the victim or the appellant.

4. Statement of the witnesses under Section 161 of Cr.P.C. and statement under Section 164 of Cr.P.C. of the victim have been recorded and after completion of usual investigation charge-sheet was filed before the learned trial Court for the offence under Section 363, 366, 376(2)(n) of I.P.C. and Section 4 & 6 of POCSO Act.

5. The learned trial Court has framed charge against the appellant for the offence under Section 363, 366, 376(2)(n) of I.P.C. and Section 6 of POCSO Act, The appellant denied the charge and claimed trial.

6. In order to prove the charge against the appellant, the prosecution has examined as many as 12 witnesses. Statement under Section 313 of Cr.P.C. of the appellant has also been recorded, in which he denied the circumstances against him, plead innocence and have submitted that he has been falsely implicated in the case. He would further submits in his defence 4 that on 31 December, the villagers were celebrating the new year and the grandfather of the victim had come to him to enquire about the victim as she was not found in her house. Since he had telephonic conversation with the victim, therefore, on suspicion he was being asked by her grandfather, thereafter, on 02.01.2024 the police has called him in the police station and obtained his signature forcefully and he has not committed any offence with the victim. One defence witness has been examined by the appellant in his defence.

7. After appreciation of oral as well as documentary evidence led by the parties, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal.

8. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There is material omissions and contradictions in the evidence of prosecution witnesses. The prosecution could not brought on record the cogent and clinching evidence with respect to the age of the victim that she was minor on the date of incident. The school register produced by the prosecution has not been proved in accordance with law. Even the author of the school register has not been examined and the basis on which the date of birth of the victim is recorded in the school register have not been produced. No other evidence like Kotwari register, birth certificate, or even ossification test report has been produced by the prosecution to determine her age. He would also submits that the victim was major girl having love affair with the appellant and she herself eloped with him on her own will and engaged in making consensual physical relation. The appellant has not kidnapped/abducted the victim. There is no injuries found on the body of the victim and no sign of any struggle. Had she been subjected to kidnapped or abducted by the appellant and subjected to forceful sexual intercourse, she definitely would have been raise alarm or made any complaint to anyone, but she did nothing, therefore, he is entitled for acquittal. 5

9. Per contra, learned counsel for the State opposes the submissions made by learned counsel for the appellant and have submitted that the prosecution has proved its case beyond reasonable doubt but for minor omissions and contradictions the evidence of the prosecution witnesses are fully reliable. The age of the victim has been proved by the school records which has duly been proved by Headmaster of the school (PW-7). The minor victim was kidnapped by the appellant and he made forceful sexual intercourse with her which amounts to rape upon her. Since she was minor on the date of incident she was not capable to give her consent, therefore, the learned trial Court has rightly considered the evidence available on record and has convicted the appellant which needs no interference and his appeal is liable to be dismissed.

10. We have heard learned counsel for the parties and perused the material available on record.

11. The first and foremost question arise for consideration would be the age of the victim as to whether on the date of incident she was minor or not? The prosecution has mainly relied upon the school register Ex.-P/12-C which is sought to be proved by PW-7, Headmaster of the school. He stated in his evidence that he is posted as Headmaster at Government Primary School Baiharsari since 2022. The police has seized the school record with respect to the date of birth of the victim vide seizure memo Ex.-P/13. After retaining the attested true copy of the school register Ex.-P/12-C, the original register Ex.-P/12 was return back to the school and according to the school register the date of birth of the victim is recorded as 19.09.2007. In cross-examination he admitted that the entries made in the school register Ex.-P/12 is not in his handwriting. He further admitted that who has made entries in the school register Ex.-P/12, he did not know. He also admitted that he did not know on what basis the date of birth of the victim is recorded in the school register. 6 Upon asking the question by the Court, he replied that the date of birth of the students is recorded in the school register on the basis of information given by the Anganbadi Centre or Kotwari Panzi or birth certificate. He also admitted that the TC of the victim has not been issued by him. From the evidence of this witness it appears that he is not the author of the school register nor he made entries in it. Even the basis on which the date of birth of the victim has been recorded in the school register he did not know.

12. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that 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. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court 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 Purohit, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of 7 birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, 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 cannot be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

13. 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:

33.2.2. 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 8 read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX

33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence 9 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.”

14. 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 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 the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. Stateof Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.

16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3) (a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) 10 (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.”

15. Reverting to the facts of the present case it is quite vivid that the said school register has not been proved in accordance with law as neither the author of the school register has been examined nor the basis on which the date date of birth of the victim is recorded in it has been proved by the prosecution.

16. PW-1, the victim have stated in her evidence that her date of birth is

19.09.2007. In cross-examination she stated that she did not know as to whether she was admitted in the school by reducing 2 years in her age or not. Although she denied in her cross-examination that her colleagues are the college students but she could not give any explanation as to the basis on which she is disclosing her date of birth.

17. PW-2, the grandfather of the victim have not disclosed her date of birth or age even he has not stated in his evidence that the victim was minor on the date of incident.

18. PW-3, father of the victim have stated that he could not remember her date of birth but she is aged about 17 years. When the father of the victim is not able to disclose her date of birth, the apprehension that she is aged about 17 years is not sufficient to hold that the victim was minor on the date of incident.

19. PW-5, who is the Kotwar of the village, have not stated anything that the father of the victim has got recorded her date of birth with the Kotwari register and he has not produced any Kotwari register for the same. No other evidence led by the prosecution to prove the age of the victim. Therefore, in view of the aforesaid evidence produced by the prosecution the age of the victim is not found proved that she was minor on the date of incident and the 11 prosecution has failed to establish the fact that the victim was minor on the date of incident and less than 18 years of age, yet the learned trial Court has held her minor.

20. So far as the involvement of the appellant in kidnapping and commission of the rape upon the victim is concerned, we again examine the evidence led by the prosecution.

21. The victim PW-1 have stated in her evidence that she knew the appellant because he is the resident of the same vicinity. She started conversation with him one year back and he proposed her on 01.01.2023. On 31.12.2023 he took her to his house on the pretext of celebrating birth day and when she had gone to his house, she found none of his friends there. The appellant made forceful physical relation with her on that day. She stayed whole of the night in his house and next day also, thereafter, when her parents came to know about the fact that she is with the appellant, they lodged the report to the police station. The police came there in the house of appellant and taken her back with them. She also stated that prior to the present incident also the appellant has made physical relation with her, once. In cross-examination she admitted that her father has shown her a photograph of her and appellant in Instagram in the mobile phone. She voluntarily stated that it was the photographs of the birth day of the appellant. She admitted that on

01.01.2024 at about 11:00 p.m. she was in her own house. On 01.01.2024 in the night itself she had gone to police station and came back in the night itself. They again went to police station on the next day along with her father and grandparents. The day on which her father have lodged report to the police, she was with her grandfather and brother in her house. She has not disclosed before the police that the appellant threatened her for making physical relation, on 31.12.2023 also the appellant had taken her to his house on the pretext of celebrating birth day and her other friends were also there in his house and he made forceful physical relation with her and she 12 stayed the whole night and the next day, thereafter, her parents came there and take her back. The appellant has made physical relation with her prior to the incident also. The victim PW-1 have not stated in her evidence that when the appellant took her in his house on the pretext of celebrating birth day and when she could not found his friends there, she had not tried to return back from his house or while making forceful physical relation as alleged by her, she has raised alarm or protest in the act of the appellant. Even she has not stated that she tried to give him any nail scratch mark or teeth bite on his body to save herself at the time of alleged commission of the offence of rape. When she stated in her evidence that prior to the present incident also the appellant made physical relation with her it appears that both of them were engaged in love affair and have engaged in making consensual physical relation on the date of incident also. In the medical examination of the victim, no injuries have been found on her body. She also denied by giving her statement Ex.-P/1. In the facts of the case it cannot be said that she is the witness of sterling quality which is required in the case for holding conviction of the appellant.

22. The Hon'ble Supreme Court in the case of Santosh Prasad alias Santosh Kumar v. State of Bihar reported in 2020 (3) SCC 443 has held in para

5.4.2. that :-

5.4.2. In Rai Sandeep³, this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under (SCC p. 29) "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other 13 supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged"

23. PW-2, who is the grandfather of the victim, is the witness that when he could not found her in the house in the morning he lodged a missing report to the police, thereafter, PW-4 shown him a photograph in Instagram in the mobile phone, thereafter, he raise suspicion upon the appellant and he informed him that the victim is with the appellant in his house. When the victim was recovered, she informed the incident that the appellant has committed rape upon her. From the evidence of this witness also it comes that on the date of incident when they were sleeping, the victim had gone to outside of the house. It is not the evidence of PW-2 that the victim has raised alarm or they heard any hue and cry of the victim. In absence of any noise or alarm from the victim it cannot be said that the victim was kidnapped by the appellant when she was in her house, that too when she supposed to be sleeping along with her family members and it is quite possible that in such condition if anyone can call her from outside, her family members or any neighbours would have heard his noise because it is close vicinity where she was residing. But none of the witnesses have stated that they have heard any noise.

24. PW-3, who is the father of the victim have stated that on the date of incident he had gone to relatives' house and in the next morning his father has informed him about missing of the victim. When the victim was recovered from the house of the appellant she informed that she was subjected to rape 14 by the appellant. He stated in his cross-examination that on 01.01.2024, the victim was in her own house and was sleeping along with her grandfather. He admitted that on 02.01.2024 the victim was not recovered from the appellant's house. He further stated that he disclosed in his police statement Ex.-D/2 that the victim has informed him about forceful act of the appellant and threatening given to her and if it is not there in his police statement he did not tell the reason.

25. PW-4, is the person who saw the victim in the house of the appellant but he did not stated that the victim was protested or in any action of protest when he saw her in the house of the appellant. Had the victim been kidnapped or subjected to forceful sexual intercourse by the appellant, she definitely would have been in the position to protest for rescue of herself and tried to came out from the house of the appellant but it is not the evidence of PW-4 that she was in such a position when he saw her in the house of the appellant.

26. From the evidence of aforesaid witnesses also from the conduct of the victim it is not proved that she was kidnapped by the appellant and was subjected to forceful sexual intercourse by him rather the evidence suggests that she was having love affair with the appellant and had gone with the appellant on her own will and made consensual physical relation with him, which does not comes under the definition of either kidnapping or rape.

27. The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cost some doubt in the mind of the Court on the veracity of the prosecutrix evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omission in the statement of the prosecutrix and other witnesses. The law is well-settled that in a 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 15 corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to being home the charges levelled against the appellants beyond reasonable doubt, which the prosecution has failed to do in the instant case.

28. In view of the above, we are of the opinion that the prosecution has proved to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt.

29. In the result the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from the alleged offences. The appellant is reported to be in jail since 02.01.2024. he be released forthwith if not required in any other case.

30. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Narad Chaturvedi is directed to furnish a personal bond for a 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.

31. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA 19:05:25 +0530