High Court of Chhattisgarh
Case Details
1 2025:CGHC:43190-DB NAFR BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.08.28 18:43:08 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1934 of 2024 Aman Singh Rathore S/o Jaipal Rathore, Aged About 19 Years R/o Village-Bhadaura, Police Station Gaurela, District-Gaurela-Pendra- Marvahi (C.G.) --- Appellant versus The State Of Chhattisgarh Through- Station House Officer, Police Station-Gaurela, District-Gaurela-Pendra-Marvahi (C.G.) (District Is Wrongly Mentioned Pendra Instant Of Marvahi) --- Respondent CRA No. 1879 of 2024 Nikhil Rathore S/o Ashok Rathore Aged About 19 Years R/o Village Bhadaura, Police Station Gaurela, District : Gaurela-Pendra-Marwahi, Chhattisgarh ---Appellant Versus State Of Chhattisgarh Through Station House Officer, Police Station Gaurela, District : Gaurela-Pendra-Marwahi, Chhattisgarh Appellant- Singh For Aman Rathore for Appellant-Nikhil Rathore : : Mr.Rajkumar Pali, No.1934/2024 --- Respondent Advocate in CRA Mr.Yogendra Chaturvedi, Advocate in CRA No.1879/2024 For Respondent : Mr.Shailendra Sharma, Panel Lawyer 2
Legal Reasoning
Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Per Ramesh Sinha, CJ 26/08/2025 1. The aforesaid two criminal appeals have been filed arising out of the same judgment dated 26.09.2024 passed by the Special Additional Sessions Judge, Pendra Road, District Bilaspur, in Special Sessions Case No.35/2022, they are heard together and
Decision
and being disposed of by this common judgment. 2. Appellant-Aman Singh Rathore has preferred Criminal Appeal No.1934/2024 against the judgment dated 26.09.2024 passed by the Special Additional Sessions Judge, Pendra Road, District Bilaspur, in Special Sessions Case No.35/2022 whereby the appellant has been convicted and sentenced in the following manner : Sl. No. Conviction Sentence 1. Under Section RI for 3 years and fine of Rs.500/-, in 363 of the IPC default of payment of fine to further undergo RI for 3 months. 2. Under Section RI for 5 years and fine of Rs.500/-, in 366 of Indian default of payment of fine to further Penal Code. undergo RI for 3 months. 3. Under Section 5(l) RI for 20 years and fine of Rs.1,000/-, in read with Section default of payment of fine to further 6 of the undergo RI for 6 months. Protection of 3 Children from Sexual Offences Act, 2012 3. Appellant-Nikhil Rathore has preferred Criminal Appeal No.1879/2024 against the judgment dated 26.09.2024 passed by the Special Additional Sessions Judge, Pendra Road, District Bilaspur, in Special Sessions Case No.35/2022, whereby the appellant has been convicted for offence under Section 16 read with Section 17 of the of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo RI for three years and fine of Rs.500/-, in default of payment of fine to further undergo RI for 3 months. 4. The prosecution story, in brief, is that the complainant / grandmother of the victim (PW-1) lodged an oral complaint at Gourela police station on 23.05.2022 stating that she lives with her daughter, son-in-law, and their one son and three daughters. On 22.05.2022, at around 9:00 P.M., they all had dinner and went to sleep. The victim, who had studied upto 8th grade, was sleeping in her parents' room. On 23.05.2022, at around 2:00 A.M. in the house saw that her elder granddaughter victim was lured and taken away by some unknown person. On the basis of the said complaint of the complainant, Gourela Police Station registered a First Information Report (FIR) against an unknown person under Section 363 of the Indian Penal Code (Ex.P-1). 5. During the investigation, the victim was recovered from the 4 custody of appellant Aman Rathore, at Solvan Fatak slum, Rajkot city, Gujarat, in presence of the witnesses. A recovery panchnama (Ex.P-7) was prepared. The investigating officer prepared a site plan (Ex. P-2) of the crime scene. The victim's medical examination was conducted after obtaining consent from the victim and her parents (Exs.P-8 and P-9). The medical examination report is Ex. P-15 in which the doctor has opined that no definite opinion regarding recent sexual intercourse can be given. After examination, the victim was handed over to her mother under a supurdginama (Ex.P-4). The victim's vaginal slides, sealed by the doctor, were seized in the presence of witnesses (Ex.P-24). Appellants-Aman Singh Rathore and Nikhil Rathore, were arrested in the presence of witnesses, and arrest memos (Exs.P-13 and P-14) were prepared. Appellant Aman Singh Rathore, was medically examined for sexual assault (Ex.P- 16A), and his underwear was seized and prepared a seizure memo (Ex.P-12). Appellant Aman Singh Rathore, was interrogated, and his memorandum statement (Ex.P-10) was recorded. 6. Further case of the prosecution is that a Pulsar 150 motorcycle, one Oppo mobile phone, and one Tecno Spark mobile phone were seized from appellant Aman Singh Rathore, in the presence of witnesses, and a seizure memo (Ex. P-11) was prepared. An application (Ex.P-27) was sent to the Judicial Magistrate First 5 Class, Pendra Road, to record the victim's statement under Section 164 of the CrPC. To verify the victim's date of birth, an application (Ex.P-17) was sent to the Headmaster of Government Secondary School, Sadhwani, to produce the school's dakhil kharij register. The Dakhil kharij register was seized in the presence of witnesses, and a seizure memo (Ex.P-18) was prepared. A certified copy of the dakhil kharij register was obtained, and the original register was returned under a supurdginama (Ex.P-19). The original dakhil kharij is Ex.P-21, and a copy of it is Ex.P-21C. The victim's 8th grade progress report was seized from her grandmother in the presence of witnesses, and a seizure memo (Ex. P-3) was prepared. 7. During the investigation, an application (Ex.P-26) was sent to the Tehsildar, Pendra Road, to provide a patwari map of the crime scene. The patwari prepared a site plan (Ex.P-5) and a site panchnama (Ex.P-6) in the presence of witnesses and submitted a report (Ex.P-22) to the Station House Officer, Police Station Gourela. The seized vaginal slides of the victim and the underwear of appellant Aman Singh Rathore, were sent to the Regional Forensic Science Laboratory for chemical examination through the Superintendent of Police (Ex.P-28). As per FSL report (Ex.P-30), semen stains and human sperm were found in Article B slide seized from the victim, however, no human sperm was found in Article A underwear seized from appellant Aman Singh Rathore. 8. After completion of investigation, chargesheet was filed against 6 the accused under Sections 363, 366, 376 read with Section 34 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. Appellant Aman Singh Rathore has been charged under Sections 363, 366 and 376(2)(n) of the IPC and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012. Appellant Nikhil Rathore, has been charged under Section 16 read with Section 17 of the Protection of Children from Sexual Offences Act, 2012. The charges were read out and explained to the appellants, who denied committing the offence and requested a trial. 9. In order to establish the charge against the appellants, the prosecution examined 13 witnesses. The statements of the appellants under Section 313 of the CrPC were also recorded in which they denied the material appearing against them and stated that they are innocent and they has been falsely implicated in the case. After appreciation of evidence available on record, the learned trail Court has convicted the accused/appellants and sentenced him as mentioned above. Hence, these appeals. 10. Mr.Rajkumar Pali, learned counsel for appellant-Aman Singh Rathore in CRA No.1934/2024 argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the victim that on the date of incident she was minor and 7 less than 18 years of age. In absence of examination of author of the dakhil-kharij register, the same cannot be taken into consideration for determination of age of the victim. Dakhil-kharij register is a weak type of evidence. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the victim that on the date of incident she was below 18 years of age. It is further argued by learned counsel for the appellant that learned trial Court has failed to appreciate that the victim (PW-2) lived with the appellant without any protest for the period of about three months and looking to her conduct, it is clearly evident that she has willing and consenting party, therefore, the impugned conviction of the appellant being unsustainable in law, deserves to be quashed. He also submits that if the entire case of the prosecution is taken as it is, then also the alleged offences are not made out against the appellant and he is entitled for acquittal. 11. Mr.Yogendra Chaturvedi, learned counsel for appellant Nikhil Rathore in CRA No.1879/2024 argued that the impugned judgment of conviction and order of sentence dated 26.09.2024 is contrary to the facts and circumstances of the case and material available on record and thus liable to be set-aside. He submits that the present appellant is innocent and has not committed any such act for that he can be held guilty, in the instant case. The prosecution has completely failed to prove its case beyond all reasonable doubts and therefore the impugned 8 judgment is not sustainable against the present appellant. He further submits that learned trial Court has erred in holding that the present appellant is guilty of Section 16 read with Section 17 of the POCSO Act. He also submits that learned trial Court has completely failed to appreciate the oral evidence of the witnesses examined before the trial Court and further material adduced before it in its true perspective. The prosecution has completely failed to prove its case in respect of minor age of the victim and therefore the findings recorded by learned trial Court regarding the minor age of the victim is erroneous. Learned trial Court has erred in holding that the present appellant provided deliberate assistance to main accused Aman Rathore for the commission of alleged offence. As such, the criminal appeal deserves to be allowed and the impugned judgment so far as it relates to the present appellant deserves to be set aside. 12. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and submits that the victim was minor and below 18 years of age at the time of incident, which is proved by the School dakhil-kharij register Ex.P-21 which contains the date of birth of the victim as 16.11.2007. The dakhil-kharij register is admissible piece of evidence to determine the age of the victim. Therefore there is no illegality or infirmity in the findings of the learned trial Court. The victim was abducted by the appellants and kept away from the lawful guardianship. Appellant Aman Singh Rathore kept her in 9 illegal confinement for a considerable period and forcefully committed sexual intercourse with her. As such, the impugned judgment needs no interference. 13. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 14. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the school dakhil-kharij register Ex. P-21 which is sought to be proved by PW-7 Shital Tanwar, Teacher L.B. of the Government Middle School, Sadhwani. Shital Tanwar (PW-7) has stated in para 1 of her deposition that she was working as the In-charge Headmaster at Government Middle School, Sadhwani on 8.8.2022. On that day, Gourela Police Station sent an application (Ex.P-17) to provide the school's dakhil kharij register to determine the date of birth of the victim in connection with Crime No. 211/2022 under Sections 363, 366, 376, and 34 of the IPC and Section 6 of the POCSO Act. On the same day, the police seized the school's dakhil kharij register and a seizure memo (Ex.P-18) was prepared. After obtaining a certified copy of the school dakhil kharij register, the original register was returned to her under supurdginama (Ex.P-19), which she signed. On the same day, she issued a certificate (Ex.P-20) regarding the victim's date of birth, which is recorded as 16.11.2007, in admission No. 1384 of the dakhil kharij register. 10 She signed the certificate. In para 2 of her cross-examination, she has admitted that she was not working as Headmaster of Government Middle School, Sadhwani, in the year 2017. She was posted at the school from 2016, but she was not working as Headmaster at that time. She has admitted that parents/guardians used to bring birth certificates at the time of admission to the school. She has also admitted if a parent/guardian brings a birth certificate at the time of admission, the date of birth is recorded in the dakhil kharij register based on the birth certificate. If a parent/guardian does not bring a birth certificate, the date of birth is recorded based on the parent's/guardian's statement. She has also admitted that she did not make the entry in the dakhil kharij register (Ex.P-21). She has also admitted that when their school issues a certificate, the school's name and the name and designation of the issuing authority are mentioned at the end along with a seal. 15.After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school dakhil-kharij register it would not be safe to hold that the victim was minor on the date of incident. The statement of the victim, as also the statement of PW-7 Shital Tanwar, Teacher L.B. of Government Middle School, Sadhwani, 11 are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the victim is 16.11.2007. 16. 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." 17. 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 12 the absence of any material on the basis of which the age was recorded. It was observed as under “40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his Article 21 of the constitutional right under 13 Constitution, as in that case the accused may unjustly be convicted." 18. In the matter of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, (2022) 8 SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the 14 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 section 35 and other the Indian Evidence Act viz., 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.” 15 19. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an 16 inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth 17 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.” 20. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident, yet the trial Court in the impugned judgment has held her minor, hence, we set aside the finding given by the trial Court that on the date of incident the victim was minor. 21. So far as the issue of forceful sexual intercourse by appellant Aman Singh Rathore upon the victim is concerned, we have carefully perused the statement of the victim recorded before the trial Court. In para 1 of her evidence, she has stated that she know the appellants. She has studied upto 9th grade. Her date of birth is 16.11.2007. She has been living with her grandmother for past 3-4 years. She know appellant Aman Rathore and they became acquainted 2 years ago when he came to their village to visit his uncle (mama). They would talk on the phone, and he 18 gave her a mobile phone. They would meet and their meetings would take place at her house. In para 2 of her evidence, she has stated that the incident occurred on June 22nd of this year. On that day, she left with Aman at around 11 P.M. On the day of the incident, Aman and other appellant Nikhil, came to her house on a motorcycle. They went to Bilaspur Railway Station on the motorcycle and then they took a train to Gujarat. Aman worked in a mixer plant in Gujarat and they lived together in a rented house there. In the rented house, her relationship with Aman was like that of a husband and wife. They lived like husband and wife in Gujarat. In para 4 of her cross-examination, she has stated that Aman Rathore used to visit his uncle's house (mama’s house) in their village, and that is how they knew each other. She has admitted that they would meet in the neighborhood and talk to each other. She has also admitted that she went to Gujarat of her own accord. She has denied that Aman and she lived in separate rented houses in Gujarat. They lived in the same rented house. She has admitted that the landlord and other tenants also lived in the same house. She has denied that Aman would stay with other tenants in their rooms at night. He stayed with her. 22. On close scrutiny of the evidence of the victim (PW-2), it is clear that the victim was a consenting party and she on her own will went with appellant Aman Singh Rathore at Gujarat and stayed there near about three months as husband and wife. 19 23.The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 24. Considering the entire evidence available on record and the conduct of the victim, we are of the opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with appellant Aman Singh Rathore. Therefore, in the above facts and circumstances of the case, offence under Sections 363 & 366 of the IPC and Section 5(l)/6 of the POCSO Act would not be made out against appellant Aman Singh Rathore and further, offence under Section 16 read with Section 17 of the POCSO Act would also not made out against appellant Nikhil Rathore. 25. For the foregoing reasons, Criminal Appeal No.1934/2024 filed on behalf of appellant Aman Singh Rathore and Criminal Appeal No.1879/2024 filed on behalf of appellant Nikhil Rathore are allowed and the impugned judgment of conviction and order of sentence dated 26.09.2024 is set aside. The appellants stand 20 acquitted from all the charges. Appellant-Nikhil Rathore is on bail. He is not required to surrender. His bail bonds are cancelled and sureties stands discharged. However, appellant Aman Singh Rathore is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case. 26. Keeping in view of the provisions of Section 437-A CrPC (Now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the appellants are directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties each in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 27. The trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Chief Justice Judge Bablu