Raigarh, Chhattisgarh v. State Of Chhattisgarh State Of Chhattisgarh Through The Station H
Case Details
1 MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.01.25 11:09:22 +0530 2025:CGHC:4435-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2089 of 2023 Sanat Kumar Patel S/o Late Kirtan Lal Patel Aged About 31 Years R/o Village- Bade Devgaon, Police Station- Kharsia,, District : Raigarh, Chhattisgarh versus State Of Chhattisgarh State Of Chhattisgarh Through The Station House Officer , Police Station Kharsia,, District : Raigarh, Chhattisgarh ... Appellant(s) ... Respondent(s) For Appellant(s) : Mr. Awadh Tripathi, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Ravindra Kumar Agrawal , Judge Per Ramesh Sinha, Chief Justice Judgment on Board 24.01.2025 1. The criminal appeal arises out of the judgment of conviction and order of sentence dated 20.10.2023 passed by the Fast Track Special Court, Raigarh, District- Raigarh (C.G.) in Session Case No. 16/2021 whereby, the appellant has been convicted for offence under Section 376(3) of the IPC read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POSCO’) and sentenced to undergo rigorous 2 imprisonment for a term of 20 years and fine of Rs.5000/-, in default of payment of fine to further undergo Rigorous Imprisonment for six months. 2. Notice issued to PW-2 i.e. mother of the victim has been served, but none appeared on her behalf to contest the present appeal. 3. The prosecution story, in brief, is that the victim appeared at Kharsia police station and submitted a written complaint that four months ago Sanat Kumar Patel of the same village used to visit her locality, at that time, Sanat Patel started talking to her and gave her his mobile number 7067847700 and said that if you have to talk about something important, call me, then he talked to her from his home mobile number and kept on talking. Sanat Patel one day told her over the phone that he likes her and he will marry her and then he kept on visiting her home to meet her. On 10.02.2021 at 9.00 a.m. there was no one in her house, at that time he came and said that he loves her and wants to marry her, and forcibly had physical relations with her. On 15.02.2021, once again when no one was in her house, Sanat Patel came and again forcibly had physical relations with her and told her not to tell anyone or else he would kill her. Out of fear, she did not tell her parents. On 24.02.2021 at 10.00 p.m. by phone, accused asked the victim to come to his house, when she refused, he said that he would make her photo viral on mobile and Whatsapp, so out of fear victim took her mobile from appellant’s house and 3 called her younger brother-in-law (Chota Jija) at home and said, “Come to Sanat Patel’s house to pick me up”, then her parents came to pick her up at that very moment and she went home. Sanat Kumar had accepted his mistake and apologized, therefore victim’s parents were also not in favor of filing a report saying that it would bring disrepute in society. On 21.05.2021, when no one was there in victims’ house, Sanat Kumar again came and tried to force himself on her. She told this to her parents and said that he will not improve till now and action should be taken. Then she came to Kharsia police station with her parents and gave an application for taking action, and upon this, in Kharsia police
Facts
station, Raigarh District, a First Information Report (Ex.P-2) was registered under crime number 286/2021 for offences punishable under sections 366A, 376 of the Indian Penal Code and sections 4,6 of the Protection of Children from Sexual Offences Act, and investigation proceedings were started in the case. 4. During the investigation, the accused was found to have committed the crime and hence arrest proceedings were initiated against him as per arrest sheet Ex.P-17. During the investigation, the statement of the victim was recorded under Section 161 Cr.P.C. The statement of the victim was recorded and when the victim was presented before the Magistrate for recording her statement under Section 164 Cr.P.C., her statement was recorded under Section 164 Cr.P.C. (Ex.P-05) and consent was obtained for medical examination of the victim and the victim was examined by 4 a Dr. Priti Ijardar (PW-06) and the mutation register related to the age of the victim (Ex.P-12A) was seized as per seizure memo (Ex.P-11). During the investigation, statements of witnesses were recorded. The spot map of the incident (Ex.P-6) and Patwari's site map along with Panchnama were prepared and after the complete investigation proceedings, the charge-sheet was presented in the Court for trial under Section 376 of the Indian Penal Code and Sections 4, 6 of the Protection of Children from Sexual Offences Act. 5. On perusal of the presented charge sheet and the attached documents, prima facie it appeared that the accused had committed the offence under Section 376 (3) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act 2012, hence charges were framed under the said sections. On being read out and explained the charge to the accused, the accused abjured his guilt and pleaded trial, saying that he was innocent. 6. The accused pleaded not guilty in the trial under Section 313 of Cr.P.C. and he has stated that he has been falsely implicated but no witness has been examined in support of his evidence. 7. In order to establish the charge against the appellant, the prosecution examined 09 witnesses. The statement of the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated 5 that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trail Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.
Legal Reasoning
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 16. 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 : 11 “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 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 12 on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11 Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 17. 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 13 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 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 14 considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate 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.” 18. Reverting to the facts of the present case and due consideration 15 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 prosecutrix was minor on the date of incident, yet the trial Court in the impugned judgment has held her
Arguments
8. Learned counsel for the appellant 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 prosecutrix that on the date of incident she was minor and less than 18 years of age. The prosecutrix is well aware of the consequences but she has not reported the matter at the time of commission of the offence therefore it is not believable that anyone can mislead her or prevent her to file the report in the pretext of marriage. The said incident last happened on 24.02.2021 and a report was lodged on a later date, meanwhile, during this gap there was no dispute of any nature, it creates suspicion in the prosecution story and it seems that there is mutual consent between the appellant and the prosecutrix for which relevant documents for examining the age have not been submitted. In the statement of the PW/1: prosecutrix has said that she went to the appellant's house as the appellant threatened her to viral the photo of the prosecutrix as such she told her mother about the incident, otherwise she wouldn't have told her and the complaint wouldn't have been lodged therefore the conviction is baseless. The finding learned by the trial court is totally erroneous and that has been based on the surmises and conjunctures and 6 without finding any legal proof, the learned trial court has held guilt of the appellant. 9. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the prosecutrix was minor and below 18 years of age at the time of incident, which is proved by the School dakhil-kharij register (Ex.P-12A) which contains the date of birth of the prosecutrix as 15.10.2005. The dakhil-kharij register (Ex.P-12A) is admissible piece of evidence to determine the age of the prosecutrix. Therefore there is no illegality or infirmity in the findings of the learned trial Court. The prosecution has proved its case beyond reasonable doubt and the prosecutrix (PW-1) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 10. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 11. In order to consider the age of the prosecutrix, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School dakhil-kharij register Ex.P-12A and the progress report of victim Article A-1 which is sought to be proved by Parmanand Bhadwaj (PW-4), Teacher 7 L.B., Headmaster of the Government Middle School, Bade Devgaon. Parmanand Bhadwaj (PW-4) has stated in his deposition that the police of Police Station Kharsia demanded the dakhil kharij register related to the victim, he took the dakhil kharij register of Government Middle School, Bade Devgaon to the police station and presented it there. The police seized the said register from him. The seizure memo is Ex.P-11. He has further deposed that he has brought with him the dakhil kharij register of Government Middle School, Bade Devgaon, in which the admission of the students is recorded in sequence form, in which the name of the victim is recorded in serial number 1454 in relation to admission. According to which, the date birth of the student is mentioned as 15.10.2005 and the date of admission in Class VI is mentioned as 01.04.2016. He has given a copy of the said dakhil kharij register, which has been verified by him and the original admission register is Ex.P-12. In his cross-examination, he has admitted that the entry regarding the date of birth of the victim has not been made by him in dakhil-kharij register. He voluntarily said that at the time when the victim was admitted to the school in class VI, he was not posted in the school. He has also admitted that he has not information about the fact that what documents were given by the victims’ guardian regarding her birht at the time of her admission. He further stated that a child coming from another school is admitted on the basis of TC. He also deposed that Dakhil Kharij register does not mention the 8 document received at the time of admission. He cannot tell whether the date of birth is correct or wrong, he voluntarily said that the entry of victim in the register is not in his handwriting and he cannot tell who has made entry regarding the admission of the victim. 12. In the Dakhil Kharij register, there is no any document mentioned to prove the date of birth of the victim produced at the time of her admission. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the prosecutrix. 13. 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 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 Parmanand Bhadwaj (PW-4), Headmaster of the Government Middle School, Bade Devgaon are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 15.10.2005. 14. 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 9 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." 15. 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. 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 10 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.
Decision
minor, hence, we set aside the finding given by the trail Court that on the date of incident the prosecutrix was minor. 19. So far as the issue of forceful sexual intercourse by the appellant upon the prosecutrix is concerned, we have carefully perused the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-5). In her 164 CrPC statement (Ex.P-5), the prosecutrix has stated that 4 months ago, Sanat Kumar Patel from my village used to come to her neighborhood. At that time, Sanat Patel started talking to her and gave her his mobile number 7067847700 and said that if she have to discuss something important, call him. Then victim talked to accused from her home mobile number 6263873361 and the conversation continued. One day Sanat Patel told the victim over the phone that he likes her and will marry her. Then he used to come to her home to meet her. On 10.02.2021 at around 9 am there was no one in victim’s house, at that time accused came and said that he loves her and will marry her and forcibly had physical relations with her. Once again on 15.02.2021 when no one was at victim’s house, Sanat Patel came and again forcibly had physical relations with her and said her not to tell anyone or else he will kill her. Out of fear, victim 16 did not tell her parents. On 24.02.2021 Sanat called her at 10 pm and asked her to come to his house, when she refused, then he said he will send your photo on mobile WhatsApp. He said that he would make it viral, then out of fear, victim went to his house with her mobile and called her younger brother-in-law's number at home and said that she is at Sanat Patel's house, come and pick her up, then her parents came to pick her up at that very moment and she went home. Sanat Kumar accepted his mistake and apologized, therefore victims’ parents were also not in favor of reporting the matter saying that accused would get defamed in the society, so they did not report it. On 21.05.2021 again Sanat Kumar came when there was no one at victim’s house and tried to force himself on her, she told this to her parents, who said that now he will not improve, action has to be taken, then victim came with my parents and gave an application to the police station for taking action. Victim told the Kotwar Sarpanch about the incident. 20. In her 164 CrPC statement, she has not stated that the appellant allured or threatened her or used any force with her and while making physical relationship with her against her will or consent. 21. In her evidence, the prosecutrix (PW-1) has stated that accused Sanat Kumar Patel is a resident of my village and used to visit victims’ locality. When the accused came to her locality in January 2021, he gave her his mobile number. She do not remember the mobile number of the accused. The accused told her to call him if 17 she had to discuss something important. Victim herself called the accused, then the accused told her that he likes her and wants to marry her. After this, the accused and victim started talking. On 10.02.2021, when victim’s parents were not at home, the accused came to her house at around 09.00 in the day and forcefully established physical relations with her. After this, on 15.02.2021, when victim’s parents were not at home, the accused came to her house and established physical relations with her and the accused said that if she tells this to anyone, he would kill her. Then she got scared and did not inform her parents about this. After this, on 24.02.2021 at 10.00 pm, the accused called victim on her home mobile number and asked her to come to his house, then she went to the accused's house, then the accused told her that if she tells anyone, he would make the victim’s photo viral on Facebook and Whatsapp. After this, the accused made the photo viral by applying vermilion on victim’s forehead. After this, victim called her younger brother-in-law and told him that she is at the house of accused Sanat Kumar, and asked them to come and pick her up. After some time, victim’s brother-in-law and her parents came to the accused's house to pick her up. She went with them and after 3-4 days she went to Kharsia police station. The police called the accused to the police station. The accused came to the police station and apologized to victim and her parents and accepted his crime. Her parents were not in favor of filing a report due to fear of social stigma. That day victims’ 18 parents and victim did not file a report in the police station. After this, a village panchayat was called. Victim, her father and accused Sanat Kumar Patel were present in the said Panchayat. It was decided in the said Panchayat that the accused party will give Rs. 45000/- to the victim party and if the victim faces any kind of trouble from the accused party, then we will go to Kharsia police station and file a report. 22. Close scrutiny of the evidence, it is clear that the prosecutrix was a consenting party. In her 164 CrPC statement (Ex.P-5) the prosecutrix has stated that she knew Sanat Kumar Patel as he was from her village and used to come to my neighborhood and has admitted the fact that she knew her well. She further admitted that Sanat Patel started talking to her and gave her his mobile number 7067847700 and said that if you have to discuss something important, call me. She further admitted that then she talked to him from her home mobile number 6263873361 and the conversation continued for 4 months. One day Sanat Patel told her over the phone that he likes you and will marry her. She also admitted that fact that accused used to come to her home to meet her. She also admitted that on 10.02.2021 at around 9 am when there was no one in her house, at that time accused came and said that he loves me and will marry me and forcibly had physical relations with me. But, the fact that the victim did not tell about the said act of the accused to her guardian or anyone else cannot be 19 disputed. She further admitted that once again on 15.02.2021 when no one was at her house, Sanat Patel again came and forcibly had physical relations with her, but again, the said fact cannot be disputed that she did not tell about the act of the accused to anyone. 23. 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 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 prosecutrix, we are of the opinion that the prosecutrix was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 376(3) of the IPC and Section 6 of the POCSO Act would not be made out against the appellant. 25. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment and conviction and order of sentence dated 20.10.2023 is set aside. The appellant stands acquitted from all 20 the charges. The appellant is on bail. He is not required to surrender. His bail bonds are cancelled and sureties stands discharged. 26. Keeping in view of the provisions of Section 437-A CrPC (now Section 481 of BNSS), the appellant is 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 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 appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 27. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the jail term, to serve the same on the Appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Chief Justice Judge Manpreet