Chattisgarh High Court
Nauku Ram Netam vs State Of Chhattisgarh on 13 February, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:8010-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 302 of 2024
Nauku Ram Netam S/o. Late Shri Sondhar Aged About 20 Years R/o
Baghnipani, Police Station Piperchedi, District Gariyaband Chhattisgarh.
... Appellant
versus
State Of Chhattisgarh Through Police Station Piperchedi District Gariyaband
Chhattisgarh.
... Respondent
(Cause title taken from Case Information System)
For Appellant : Mr. Chitendra Singh, Advocate
For Respondent/State : Mr. Sourabh Sahu, Panel Lawyer
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgement on Board
Per Ramesh Sinha, C.J.
13/02/2026
1. By order dated 04.03.2024, notice was directed to be issued to the complainant/father of the victim through the learned State counsel. Digitally signed by VED Learned State counsel, however, submits that despite efforts, the VED PRAKASH PRAKASH DEWANGAN DEWANGAN Date:
2026.02.19 11:32:17 notice could not be served upon the complainant/father of the victim +0530 (PW-7). The appellant has remained in custody since 18.11.2020 and 2 continues to be in incarceration. Having regard to the fact that the appeal arises out of a matter of the year 2020, and with the consent of learned counsel appearing for the parties, we deem it appropriate to take up the appeal for final hearing and proceed to decide the same on merits.
2. This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellant-Nauku Ram Netam (in jail) assailing the judgment of conviction and order of sentence dated 20.10.2023 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO & Rape Cases), Gariyaband (C.G.) in (POCSO) Case No. 12/2021, whereby the appellant has been convicted under Sections 363 and 366 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced in the following manner:
Conviction Sentence Under Section 363 of Indian Rigorous imprisonment for 2 years Penal Code and fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of one month separately.
Under Section 366 of Indian Rigorous imprisonment for 5 years Penal Code. and a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of one month separately.
Under Section 6 of POCSO Rigorous imprisonment for 20 years Act, 2012 and a fine of Rs.5000/-, in default of payment of fine to further undergo 3 rigorous imprisonment for a period of one month separately.
All the sentences awarded shall run concurrently.
3. By the impugned judgment of conviction, the appellant has also been convicted for the offence under Section 376(3) of IPC, but no separate sentence has been awarded for the offence under Section 376(3) of IPC, as he has already been sentenced under Section 4(2) of POCSO Act.
4. As per the case of the prosecution, on 13.11.2020, the complainant, who is the father of the victim/prosecutrix, lodged a report at Police Station Piperchedi, District Gariyaband (C.G.), stating that on the said date he and his wife had gone to their agricultural field for farming work, leaving their son and daughter at home. When they returned at about 5:00 PM, they found that their daughter, aged about 15 years and 9 months, was missing. Despite making efforts to search for her in the village and nearby places, her whereabouts could not be traced. ******* On the basis of the said report, a First Information Report bearing Crime No. 21/2020 was registered initially under Section 363 of the Indian Penal Code, 1860 against an unknown person at Police Station Piperchedi, District Gariyaband.
******* During the course of investigation, the Investigating Officer prepared the spot map, recorded statements of witnesses under Section 161 of the Code of Criminal Procedure, 1973, and made efforts to trace the victim. Subsequently, the victim/prosecutrix was 4 recovered from the custody/possession of the present appellant/accused. The school admission register (Dhakhil Kharij) and marksheet were seized to ascertain the age of the victim. The victim was medically examined and her statement was recorded. On the basis of her statement and other material collected during investigation, the present appellant was arrested and his medical examination was also conducted.
******* Upon completion of investigation, offences under Sections 366 and 376(2)(i)(n) of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 were added. After completion of investigation, charge-sheet was filed before the Special Court (POCSO), Gariyaband against the appellant for the aforesaid offences.
******* On November 18, 2020, at approximately 03:50 PM, the victim was produced for medical examination by Female Constable No. 63, Ishwari Sahu, before Dr. Nisha Navratna (PW-04) at the District Hospital, Gariyaband. According to the medical examination report (Ex. P/09) and the requisition (Ex. P/10), the doctor noted that while there were no recent external or internal injuries, the hymen was found to be "old torn," and the doctor opined that the victim had been subjected to sexual intercourse. The victim's secondary sexual characteristics were fully developed. Two vaginal slides were prepared, and the victim's underwear which contained white stains was seized (Ex. P/03) and sealed for forensic analysis. Simultaneously, the accused, Nauku Ram Netam, was examined by 5 Dr. G.S. Dhruv (PW-08), who issued a report (Ex. P/21) confirming the accused was capable of performing sexual intercourse. ******* The forensic investigation was further corroborated by the FSL Report (Ex. P/35), which confirmed the presence of semen and human spermatozoa on the victim's vaginal slides (Exhibit A), the victim's underwear (Exhibit B), and the accused's underwear (Exhibit C). Regarding the crime scene documentation, Assistant Sub-Inspector Indra Kumar Aadil (PW-09) prepared the initial spot map of the complainant's house at Village Phulkarra (Ex. P/17) and the relative's house at Village Bhaisadadar (Ex. P/23). This was supplemented by formal revenue maps: Patwari Neha Uike (PW-03) prepared the Nazari Naksha and Panchnama for the Phulkarra site (Ex. P/07), while Patwari Lokesh Sahu (PW-05) prepared the Nazari Naksha and Panchnama for the Bhaisadadar site (Ex. P/12 and Ex. P/13), providing a comprehensive geographical record of the incident locations.
5. With regard to the determination of the age of the prosecutrix, the prosecution has relied upon the school admission register (Dhakhil Kharij) and the marksheet of Class VII, which were seized vide seizure memo and exhibited during trial. The attested copy of the relevant entry was brought on record, though the person who originally made the entry in the school register was not examined before the Court. The parents of the prosecutrix were also examined; however, they could not state the exact date of birth and admitted that the age was mentioned in the school on the basis of estimation. No birth certificate 6 issued by a competent authority was produced, nor was any ossification or radiological age determination test conducted, though the medical officer had advised such examination. ******* The prosecutrix was medically examined by PW-4, Dr. Nisha Navratna, at District Hospital, Gariyaband, who prepared the medical report and noted that there were no external or internal injuries on her person. The hymen was found to be old torn and the secondary sexual characteristics were fully developed. Vaginal slides were prepared and the underwear containing white stains was seized and sealed for forensic examination. The appellant was also subjected to medical examination and was found capable of performing sexual intercourse. ******* The seized articles, including the vaginal slides of the prosecutrix and the undergarments of both the prosecutrix and the appellant, were sent to the State Forensic Science Laboratory, Raipur, for chemical examination. As per the FSL report, semen and human spermatozoa were detected on certain exhibits. However, the report does not indicate any DNA profiling, blood grouping, or scientific comparison conclusively linking the detected semen to the appellant.
After filing of the charge-sheet, the learned trial Court took cognizance of the offences and committed the case to the Court of Sessions, as the offences were exclusively triable by the Special Court constituted under the provisions of the Protection of Children from Sexual Offences Act, 2012. Thereafter, charges were framed against the appellant for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and Section 6 of the Protection of 7 Children from Sexual Offences Act, 2012. The appellant abjured his guilt and pleaded false implication, thereby claimed to be tried. ******* In order to bring home the charges, the prosecution examined as many as ten witnesses and exhibited the relevant documents including the First Information Report, seizure memos, medical examination reports, school records relating to the age of the prosecutrix, and the Forensic Science Laboratory report. The statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, wherein he denied the incriminating circumstances appearing against him in the prosecution evidence and pleaded innocence. No defence witness was examined. ******* Upon appreciation of the oral and documentary evidence available on record, the learned trial Court convicted the appellant under Sections 363 and 366 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced him as mentioned hereinabove. Hence this appeal.
6. Learned counsel for the appellant contended that the impugned judgment of conviction is wholly unsustainable in law as the prosecution has failed to prove the essential ingredients of the alleged offences beyond reasonable doubt. It was submitted that the age of the victim has not been established with certainty, as the school record relied upon by the prosecution suffers from inconsistencies, and no reliable and admissible evidence has been placed on record to conclusively determine that the victim was below 18 years of age at the relevant time.
8******* Learned counsel further argued that the medical evidence does not indicate any recent injuries or signs of force, and the hymen being "old torn" only suggests prior sexual activity and cannot be taken as proof of non-consent at the time of the alleged incident. Regarding the FSL report, it was submitted that although semen and human spermatozoa were detected, no DNA profiling was conducted to link the accused with the sexual activity; hence, the report cannot form the basis for conviction.
******* It was also urged that the prosecution has not satisfactorily established the identity of the appellant as the person who allegedly abducted the victim, and the statements of the victim are self- contradictory and influenced by family disputes. The appellant was falsely implicated due to a long-standing property dispute between the families. Reliance was placed on the principle that benefit of doubt must go to the accused when the evidence is not conclusive. Learned counsel, therefore, prayed for the acquittal of the appellant.
7. Per contra, learned counsel appearing for the State submitted that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt. It was argued that the complainant's report, supported by the investigation and recovery of the victim from the appellant's custody, establishes that the victim was forcibly taken by the appellant. The statements of the witnesses under Section 161 of CRPC, as well as the victim's statement under Section 164 of CRPC, consistently support the prosecution case and show that the appellant was responsible for the abduction and sexual assault. 9 ******* Learned counsel further contended that the age of the victim has been corroborated through the school records seized during investigation, indicating that she was a minor at the time of the incident, and the medical examination confirms that she had been subjected to sexual intercourse. The FSL report also substantiates that semen and human spermatozoa were found on the victim's vaginal slides, her underwear, and the appellant's underwear, which clearly connects the appellant to the sexual activity. ******* It was also submitted that the defence claims of false implication due to property disputes are unsubstantiated and cannot outweigh the direct evidence and scientific findings. The appellant's denial under Section 313 of CRPC is self-serving and contradicted by the evidence on record. Learned counsel, therefore, prayed for the dismissal of the appeal and maintenance of the conviction and sentence passed by the trial Court.
8. We have heard the learned counsel for the parties and perused the records and evidence adduced.
9. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident she was minor or not ?
10. The prosecution bears the inescapable burden to prove beyond reasonable doubt that the victim was under 18 years old on the date of the incident, 13.11.2020, to invoke the stringent provisions of Section 6 of the POCSO Act, 2012, where "child" under Section 2(1)(d) means a person under 18 years. Where age is disputed, as consistently 10 challenged by the defence throughout the trial, scientific determination through an ossification test becomes mandatory, as held in Jarnail Singh v. State of Haryana (2013) 7 SCC 263, and the trial court gravely erred by accepting secondary school records without this primary verification.
******* Medical evidence further exposes the prosecution's failure, as PW-4 Dr. Nisha Navratan, who medically examined the victim on 18.11.2020, categorically recommended an ossification test, radiological opinion, and dental examination for age determination, yet the prosecution shockingly conducted none despite this expert advice. PW-4 noted fully developed secondary sex characters, the presence of pubic hair, and menses since age 12 physiological markers consistent with 16-17 years, as confirmed in cross-examination where she stated that such development is "hormone and body structure dependent." Absent scientific age proof, the prosecution case crumbles at the threshold.
******* The trial court placed undue reliance on secondary evidence like the Dhakhil Kharij Entry 72 and Halafnama Entry 72 (Art-1/2), which showed a date of birth of 26.01.2005 and were admitted by PW- 2 and PW-6; however, both witnesses admitted fatal defects, including that the entries were made by an unidentified "then-teacher" who was not examined, with no basis in the Nokotwari register, birth certificate, or affidavit, no teacher or principal signatures, and the father merely signing a "verification" without producing primary records. School 11 documents, without scientific corroboration, cannot conclusively prove minority.
******* The statements given by the family members also weaken the prosecution's case. PW-7 (the father) said that he did not clearly remember his daughter's date of birth. He only estimated that she was below 16 years and guessed that she was about 15 years old at the time of the incident. He also said that he got this information from a hospital nurse, but he did not produce or receive any birth certificate to support it. PW-1 (the victim) stated that her date of birth is 26.01.2005, but when it was suggested that this date was taken only from school records, she denied it. PW-10 (the mother) was confident about the date of birth; however, during cross-examination, it appeared that her statement might have been influenced by the school records. These changing and uncertain statements show that there is no clear and definite proof of the victim's exact age, which is necessary for conviction.
******* The trial court ignored binding Supreme Court rulings, including State of M.P. v. Anshuman Shukla (2023 LiveLaw SC 244), which holds that school records plus matriculation are insufficient sans ossification when disputed, and Jarnail Singh (supra), which mandates ossification where secondary evidence is challenged. Even accepting the school DOB, the victim was 15 years and 10 months old insufficient for aggravated POCSO under Section 6, as certain aggravations require the victim to be under 16 years. 12
******* The prosecution failed to discharge its burden through primary scientific evidence, resting instead on defective school entries contradicted by family uncertainty and unimplemented medical advice, leaving every ingredient of the POCSO offence unproved. The appellant is entitled to the benefit of doubt on the age element, rendering the trial court judgment perverse and liable to be set aside with acquittal under Section 6 of the POCSO Act.
11. The admissibility and evidentiary value of the school register has been considered by the Hon'ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385. In Para 40, 42, 43, 44 and 48 of its judgment, the Hon'ble 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 13 examined.
42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, observed as follows:-
"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in Issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue.
No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 14 (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 15 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."
12. 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:16
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 xxxx 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the 33 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 17 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 hyper.
technical 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 18 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 33 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."
13. 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 33 Act clearly Indicates that the date of birth certificate from the 19 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, l.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 20 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: (1) 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:
21
"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)(1) 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."
14. Reverting to the facts of the present case with respect to the offence of 22 kidnapping and rape, we again examine the evidence of victim (PW-1), who turned partly hostile and had her statement recorded under Section 154 of the Evidence Act. In her main statement, she admitted knowing the accused for a year beforehand, walking to Bhaisadadar with him willingly without any force, having physical relations in the jungle multiple times before the incident, and crucially, never refusing his love proposals or stopping his advances. Her cross-examination confirmed that her parents were unaware of the relationship, she had told a friend about their love talks, the accused never promised marriage even at Bhaisadadar, and he never used force or a vehicle on her. When questioned further, she admitted he "lured her with marriage talk," but this doesn't fit with her own actions, she willingly continued this secret relationship for 22 months, from 27 January 2019 to 17 November 2020. Her mature behavior in keeping it hidden and allowing physical intimacy without resistance; the medical report (PW-
4) backs this up, noting her fully developed body with genitals, pubic hair, and periods starting at age 12.
******* This evidence completely destroys the prosecution's claim of forced kidnapping and rape. The victim never mentioned resisting at the time or telling her parents immediately--she only spoke up after police recovery. Medical proof reinforces this: an old hymen tear (PW-
4), no fresh injuries despite "many recent acts," and semen in the FSL report with no DNA link to the accused. The parents (PW-7 and PW-
10) made no immediate complaints of force, only vague "luring" claims later on. The trial court wrongly ignored this clear proof of consent and over-relied on faulty school records for her age. 23
******* The victim's own testimony proves it was fully consensual, so the accused deserves acquittal. Her partial hostility, willing actions over time, lack of any resistance signs, and mature physical development create serious doubts about non-consent and her being a minor. The conviction simply can't hold up--the accused must get the benefit of the doubt.
15. The victim's evidence (PW-1) clearly shows a consensual relationship, ruling out any non-consent. In her chief examination, she admitted knowing the appellant for a year beforehand, going to Bhaisadadar with him voluntarily without any force or vehicle, and having repeated physical relations in the jungle and Khetkhar over 22 months from January 27, 2019, to November 17, 2020. Most importantly, she never refused his love or physical advances. Her cross-examination confirms this was a sustained secret relationship her parents didn't know about; she even discussed his affection with a friend, and there were no marriage promises even at the destination. When pressed with hostile questions, she reluctantly mentioned "luring," but this falls apart against her pattern of voluntary conduct. The trial court made a serious error by twisting this consensual history into non-consent. ******* Medical evidence further destroys the rape case. PW-4, Dr. Nisha Navratan, found an old hymen rupture, fully developed secondary sex characteristics, pubic hair, and regular menses since age 12 all signs of habitual intercourse, not a single traumatic event. There were no fresh genital injuries, even though the alleged acts were recent (last one on November 17, 2020). PW-8, Dr. G.S. Dhruv, 24 confirmed the appellant was potent. The FSL report (PP-33) detected semen and human spermatozoa on the victim's slide and underwear (A/B) as well as the appellant's underwear (C), but it lacks DNA or blood matching to prove who it belonged to.
******* The victim's mature behavior, along with the neutral medical evidence, demands an acquittal. PW-1 showed clear agency unlike a typical rape victim: she maintained the relationship, traveled voluntarily, and only raised resistance claims after custody. The Supreme Court case Deepak Gulati v. State of Haryana (2013) 7 SCC 675 stresses distinguishing consensual intimacy from exploitation. With no signs of force, no resistance evidence, and no scientific link tying the semen to a crime, the appellant deserves the benefit of the doubt. The conviction under Section 376(2)(i)(n) IPC and Section 6 POCSO is completely unsustainable and should be set aside.
16. From all these evidences, it cannot be said that the victim is having a status of the witness of that sterling quality on which the appellant can be convicted. The sterling witness has been considered by the Hon'ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar v. State of Bihar, 2020 (3) SCC 443, which is reproduced herein below:
"5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:25
"22 In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should 26 not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
17. The version of the prosecutrix 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 prosecutrix's evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of the prosecutrix and her parents. 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 27 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.
18. From the overall evidence produced by the prosecution, it can safely be said that the evidence produced by the prosecution are not sufficient to hold conviction of the appellant for the alleged offence, as there are sufficient material available in their evidence to disbelieve them under the facts and circumstances of the case. When the evidence of the victim is not found credible and there is reasonable suspicion on her evidence, then the conviction cannot be made solely on the basis of the statement of the victim. Therefore, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt against the appellant to convict him for the offence under the IPC or under the POCSO Act.
19. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence are hereby set aside. The appellant is acquitted from all the offences. The appellant is reported to be in jail since 18.11.2020. He be released forthwith if not required in any other case.
20. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Nauku Ram Netam is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for 28 grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
21. Registry is directed to transmit the trial Court record along with a copy of this order to the Court concerned forthwith for necessary information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved