Chattisgarh High Court
Sunder Lal @ Pappu @ Vishal vs State Of Chhattisgarh on 5 July, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 352 of 2024
Sunder Lal @ Pappu @ Vishal S/o Late Jhitu Ram Aged About 24
Years R/o Imlighana, P.S. - Mohda, Distt - Baitul (M.P.)
---- Appellant
Versus
State Of Chhattisgarh Through, District Magistrate Balod, Distt -
Balod, Chhattisgarh.
---- Respondent
(Cause-title taken from Case Information System)
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For Appellant : Ms. M. Asha, Advocate. For Respondent/State : Mr. Amit Buxy, Panel Lawyer
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Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 05.07.2024
1. This appeal is arise out of the judgment of conviction and sentence dated 14.12.2023 passed by the learned Additional District & Session Judge (FTSC) and Special Judge (POCSO Act), Balod, District - Balod in Special Session Trial No.45/2022, whereby the appellant has been convicted and sentenced in the following manner :
CONVICTION SENTENCE Under Section 363 of IPC : R.I. for 3 years and fine of Rs.2,000/- in default of payment of fine amount one year additional R.I. Under Section 366 of IPC : R.I. for 5 years and fine of Rs.2,000/- in default of payment of fine amount one year additional R.I. Under Section 6 of the : R.I. for 20 years and fine of Rs.3,000/- in 2 Protection of Children default of payment of fine amount one from Sexual Offences Act, year additional R.I. 2012 All the sentences shall run concurrently.
2. The facts of the case in nutshell is that on 30.03.2022, the complainant/maternal uncle of the victim has lodged a complaint to the police Station - Balod, District Balod with the allegation that he residing at Irrigation Colony Amapara, Balod and posted in Police Department on the post of Constable his niece (Bhanji) victim aged about 17 year 10 months reside with him and studying in class 12th who on 25.03.2022 at about 02:30 p.m. she went to her mother-father's house at village - Bharda from Irrigation colony, Amapara, but she not reached to Village- Bharda and also not come at Irrigation colony, Amapara, due to which it appears that some unknown person has kidnapped his niece from his lawful guardianship. On the basis of the said report the police has registered the FIR under Section 363 and during the investigation on 13.04.2022 the victim was recovered from the possession of the appellant at village - Buliyakhedi, P.S. - Pradhan, District - Khandwa (M.P.) and after due investigation the offence under Section 366, 376(2)
(n) of IPC and Section 4, 5(1)/6 of POCSO Act has been registered against the present appellant in Crime No.150/2022 and filed the charge sheet before the trial Court. Thereafter, the learned trial Court has framed charges under Sections 363, 366, 376(2)(n) of IPC and Section 5(L)/6 of POCSO against the appellant.
3. The victim was sent for her medical examination to District Hospital, Balod, where PW-3, Dr. Megha Jha has examined her and gave her report Ex.P/8. While examining the victim, the Doctor has not found any 3 external injury on her body, however opined that according to external and internal finding and according to victim history, sexual offence cannot be ruled out. Two slides of her vaginal swab were prepared sealed and handed-over to the police. The victim was advised for X-ray examination for her age determination. During the course of investigation, the spot map Ex.P/24 was prepared by the police and Ex.P/22 was prepared by the Patwari. The underwear of the victim was seized vide Ex.P/08A & P/08. Two slides of vaginal swab were prepared, sealed, packed and handed-over to the police for FSL examination. The marksheet of the Class-10th of the victim was seized as Article A(C) and her social status certificate as Article B(C). The School Admission and Discharge Register and Affidavit Register have been seized from Govt. Adarsh Girls High. Sec. School, Balod, District Balod vide seizure memo Ex.P/17 and after retaining the attested true copy of the same, vide Ex.P/18 the original register was returned back to the School and the attested true copy of School Register is Article 'C(C)' wherein the date of birth of the victim is recorded as 08.05.2004. The appellant was arrested on 15.04.2022 and he too was sent for his medical examination to District Hospital, Balod District Balod, where he has been examined by the Doctor who found him capable to perform sexual intercourse. The underwear of the appellant was seized vide Ex.P/20A & P/20. The seized articles were sent for FSL examination to regional FSL, Raipur from where the FSL report Ex.P/30 was received and according to which the semen and sperms were found in the vaginal swab but not found in underwear of the victim.
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4. The statement under Section 161 of the witnesses and also under Section 164 of CrPC of the victim have been recorded and after completion of investigation, chargesheet was filed before the learned trial Court for the offences under Sections 363, 366, 376(2)(n) of IPC and Sections 5(L) and 6 of POCSO Act. The learned trial Court has framed charges against the appellant for the offences under Sections 363, 366, 376(2)(n) of IPC and Section 5(L)/6 of POCSO Act. The appellant abjured his guilty and claimed trial.
5. In order to establish the charge against the appellant, the prosecution has examined as many as 11 witnesses. The statement of the appellant under Section 313 CrPC have also been recorded in which he denied the material appears against him and plead innocence and have submitted that he has been falsely implicated in the offence.
6. After appreciation of oral as well as documentary evidence produced by the prosecution the learned trial Court has convicted the appellant and sentenced him as mentioned in para-1 of this judgment, hence this appeal.
7. Learned counsel for the appellant would submit that prosecution have failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses. The prosecution has failed to produce the cogent and legally admissible evidence with respect to age of the victim to hold that on the date of incident she was minor. The author of the School Admission and Discharge Register have not been examined and the basis on which the date of birth of the victim is recorded in the said school register have also not been proved. No any Kotwar register, birth certificate or ossification 5 test report have been produced by the prosecution for determination of the actual age of the victim.
8. He would further submit that the victim was having love affair with the appellant and she herself eloped with him on her own sweet will and have not made any complaint to anyone while going with the appellant by Bus or Train. She has not raised any alarm while she has been taken by the appellant and also while staying with him and making physical relation with him. The evidence of the victim does not inspire the confidence and therefore no offences under IPC and POCSO Act are made out against the appellant and he is entitled for acquittal.
9. On the other hand learned counsel for the State opposes the submissions advanced by the counsel for the appellant and have submitted that on the date of incident the victim was minor and below 18 years of age which is proved by the PW-6 who is the I/c. Principal of the Govt. Adarsh Girls Hig. Sec. School, Balod. The school register duly proved by the these witnesses in which the date of birth of the victim is recorded as 08.05.2004. She being the minor girl, was kidnapped by the appellant and kept away from the lawful guardianship of the parents and committed sexual intercourse with her, thereby committed offence of rape defined under IPC and also of POCSO Act. Considering the entire evidence, the learned trial Court has convicted and sentenced the appellant which is justified and the appeal of the appellant is liable to be dismissed.
10. We have heard learned counsel for the parties and peruse the material available on record.
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11. In order to consider the age of the victim we have examined the evidence available on record produced by the prosecution. The prosecution has mainly relied upon the School Admission and Discharge Register Article C(C) which is sought to be proved by the PW-6 and Class 10th marksheet Article A(C). PW-6 in his deposition has stated that he is posed as Lecturer in Govt. Adarsh Girls Hig. Sec. School, Balod since 14.07.2010 and from 28.04.2022 he was working as Incharge Principal. The police had seized School Admission and Discharge register with respect to date of birth of the victim vide seizure memo P/17 and after retaining the attested true copy of the school register, the original was returned back to the school. The attested true copies of the register is Articel A(C), according to which the date of birth of the victim is recorded as 08.05.2004. In the school register the victim was admitted in Class -IX on 26.06.2018 and her admission was recorded at Sl. No.8552. In cross- examination, he has admitted that the endorsement with respect to date of birth of the victim in the said school register is not in his handwriting. He did not know as to who had taken her to the school for her admission. He also did not know as to on what basis her date of birth has been recorded in the said school register. He also showed his ignorance as to whether the date of her birth mentioned in the school register is correct or incorrect.
12. PW-1, victim has stated in her deposition that she has completed her school education this year only and her date of birth is 08.05.2004. She has not stated anything in her deposition as to on what basis she is saying that her date of birth is 08.05.2004. PW-2, the mother of the victim has stated in his deposition that at present the age of victim is 18 years 7 and her date of birth is 08.05.2004. After completing her school education up to Class -XII, victim is studying ITI. At the time of incident age of victim was 17 years. PW-4, The father of the victim has stated in his deposition that he has registered the birth of victim in Anganbadi. He has also submitted that he had admitted the victim in Class -1 in the school and at that time he was not having any relevant document in support of the age of the victim. From the evidence, it appears that Class - X certificate and the school register are available in support of date of birth of the victim.
13. In case 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."
14. In case 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, 8 the admissibility of such a document would be of not much evidentiary value to prove the age of the victim 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 Purohit1, 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 birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid 9 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 can not be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder 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 10 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 victim 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."
15. 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 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 11 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 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."
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16. 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. 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 13 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 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."
17. Reverting to the facts of the present case, on due consideration of the prosecution evidence with respect to age of the victim, we find that no 14 clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the victim was minor on the date of incident, despite that, the trial Court has held her minor in the impugned judgment. Hence, we set aside the findings given by the learned trial Court that on the date of incident the victim was minor.
18. So far as issue of kidnapping and forceful sexual intercourse by the appellant with victim is concerned, we have carefully perused the evidences of the victim. In her evidence, the victim PW-1 has stated that in the month of July, 2021, she received a call from a wrong number stating his name as Vishal. Thereafter, the appellant used to call her time to time, but the victim denied him. The appellant proposed her to marry over mobile, but the victim refused him. After some time they become friends and started talking to each other. The appellant used to make her talk to his sister. On 24.03.2022, the appellant informed her over phone that he was coming to Balod to pick her. On 25.03.2022, the appellant came of Balod by bus and called her on phone insisted her to come with him. When she disobeys his request, the appellant threatened to die and also threatened to kill her. Due to threat of the appellant the victim left the house after telling her aunt that she was going to her father's house and reached the bus stand Balod on foot, where the appellant was already waiting for her. The appellant took her to Durg by bus and from Durg to Nagpur by train, from Nagpur to Indore and took her to Sonaksh in Indore where appellant's sister resided. The appellant's sister already knew about their affairs and appellant disclosed to her sister that he love her and want to marry her. Both of them stayed in the bedroom of her sister's house for about a week. Thereafter, the appellant took her to Diwan, 15 where construction work of pool was going on and the appellant got the job there and they lived in a hut for about a week. During this period, the appellant used to have physical relations with her every day. The victim had forbidden the appellant from having physical relations, yet the appellant used to have physical relations with her. The appellant was not aware that she is minor at the time of incident. After a week, the appellant took her to a place in Kawardha district where a pool was being constructed and there also the appellant got the job and took her with him in a hut. The appellant used to have physical relations every day with her. When she refused to have physical relations every day, the appellant used to beat her. On 12.04.2022, at the place in Kawardha district where they are living in slum, Pandhana police and Balod police came there and recovered the victim from the possession of the appellant, after which they were brought to Balod police station. The policemen interrogated and recorded her statement in which she has stated that she was 17 years and 10 months old at the time of the incident.
19. PW-2, father of the victim have stated in his deposition that he has 02 children and the victim is the youngest daughter studying in ITI. The date of birth of victim/victim is 08.05.2004. The policemen has seized from him the victim/victim's Class- X marksheet and caste certificate regarding the age of the victim/victim marked as Article A-C and B-C respectively and same were returned to him. On being asking from the victim, she disclosed that the appellant has taken her with him on the pretext of marriage and made physical relation with her. In cross-examination he stated that he and his family member came to know that the victim has 16 eloped with the appellant only after she was recovered and brought to police station for further interrogation and recording of statement.
20. PW-3, the Doctor who has medically examined the victim have not found any external injury on her body. There is no evidence on record that the victim was ever resisted by making scratch by nail or tried to teeth bite on the body of the appellant to save herself while the appellant committed sexual intercourse with her. the Doctor advised the victim to undergo urine pregnancy test and long bone X-ray to a radiologist to check the reality of age.
Even there is no evidence that she has raised any alarm or have shouted when she was allegedly subjected to forceful sexual intercourse by the appellant. She travelled with the appellant by Bus and Train upto the Indore but she has not made any complaint to any of the passengers or persons she met while she was travelling with the appellant. From the close scrutiny of the evidence makes it clear that the victim neither was taken by force nor she was kidnapped by the appellant, she herself accompany with the appellant on her own will and consent. Further the appellant has not committed any forceful sexual intercourse with her without her will or consent and she engaged in making physical relation with the appellant consensually.
21. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the Court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. 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 17 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 any reasonable doubt, which the prosecution has failed to do in the instant case.
22. Considering the entire evidence available on record, the evidence with regard to the age and conduct of the victim, her evidence, absence of any injury over her body as also the evidence that she was in love affair with the appellant, we are of the opinion that prosecution has failed to prove that on the date of incident the victim was minor, she has not been kidnapped by the appellant and has not been taken by force and she herself eloped with him and made physical relation with him consensually, therefore, in view of the above facts and circumstances of the case, the offences under Sections 363, 366, 376(2)(n) of IPC and Section 5(L)/6 of POCSO Act are not made out against the appellant.
23. For the foregoing reasons, the appeal is allowed. The impugned judgment of conviction and sentence dated 14.12.2023 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 15.04.2022, he be released forthwith, if not required in any other case.
24. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking 18 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.
25. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Ravi Mandavi