Phoolsay Bek vs State Of Chhattisgarh on 29 April, 2026

[Cites 38, Cited by 0]

Chattisgarh High Court

Phoolsay Bek vs State Of Chhattisgarh on 29 April, 2026

Phoolsay Bek S/o. Bikeshwar Bek, Aged About 21 Years At Present R/o. Village Jodhpur, Thana Chando, District Balrampur - Ramanujganj, Permanent R/o Village Larangee, Thana Kusmi, District Balrampur Ramanujganj Chhattisgarh.

---Appellant(s) Versus State of Chhattisgarh Through Thana Chando, District Balrampur Ramanujganj Chhattisgarh.

---Respondent(s) (Cause-title taken from Case Information System) Digitally signed by BRIJMOHAN BRIJMOHAN MORLE MORLE Date:

2026.05.05 17:50:44 +0530 2 For Appellants : Mr. Rohit Sharma, Advocate in CRA No. 157 of 2024 and Mr. Samir Singh, Advocate in CRA No. 1919 of 2023.

For Respondent/State : Mr. Ashish Shukla, Additional Advocate General.

Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 29.04.2026

1. Heard Mr. Rohit Sharma, learned counsel for the appellants in CRA No. 157 of 2024, and Mr. Samir Singh, learned counsel for the appellant in CRA No. 1919 of 2023. Also heard Mr. Ashish Shukla, learned Additional Advocate General, appearing for the State/respondent in both the appeals.

2. Though CRA No. 157 of 2024 is listed today for hearing on I.A. No. 1 of 2024 (application for suspension of sentence and grant of bail) along with CRA No. 1919 of 2023, in which the appellant has already been granted bail by the learned Single Judge vide order dated 20.03.2024, however, considering that the appellants in CRA No. 157 of 2024 have been in custody -- appellant No. 1 since 25.08.2020 and appellant No. 2 since 27.06.2022 -- and with the consent of learned counsel for the parties, the appeals are taken up for final hearing.

3. The present criminal appeals, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), are directed against the impugned judgment of conviction and order of sentence 3 dated 29.09.2023 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO Act), Ramanujganj, District Balrampur-Ramanujganj (C.G.) (for short, "learned trial Court"), whereby the appellants have been convicted and sentenced as follows:

Conviction Sentence Section 363 of the the Indian Rigorous imprisonment (for short, Penal Code (for short, "IPC") 'R.I.') for 05 years and fine of Rs.500/-, in default of payment of fine, 01 month S.I. more.

Section 366 of the IPC R.I. for 05 years and fine of Rs. 500/-, in default of payment of fine, 01 month S.I. more.

Section 4 of the Protection of R.I. for life and fine of Rs.15000/-, in Children from Sexual default of payment of fine, 02 months Offences Act, 2012 (for short, S.I. more.

     the    "POCSO         Act")     is
     applicable     only      against
     Appellant No. 1 in CRA No.
     157 of 2024.

All the sentences shall run concurrently.

4. The prosecution case, in brief, is that on 12.08.2020, the father of the victim (PW-2) lodged information at Police Station Chando stating that the victim had gone missing on 08.08.2020. Despite searching the surrounding areas, her whereabouts could not be traced. He expressed suspicion that an unknown person had enticed and taken her away. On the basis of the said complaint, Assistant Sub-Inspector Bhuneshwar Singh (PW-7) of Police Station Balrampur registered a First Information 4 Report (Ex.P/4) against an unknown person in Crime No. 24/2020 under Section 363 of the IPC. The place of occurrence was inspected and a spot map was prepared. Thereafter, during further investigation, Inspector Rupesh Kuntal Ekka (PW-5) recovered the victim on 19.08.2020 from village Chando in the presence of witnesses, as per recovery memo (Ex.P/1). Subsequently, Inspector Anita Prabha Minj (PW-6) recorded the statement of the victim, wherein she stated that the appellants, namely, Aardiyan Lakda, Amit Tirkey, and Phoolsay, had forcibly taken her away, and that appellant Aardiyan Lakda had committed forcible rape upon her. Thereafter, with the consent of the victim, she was sent to District Hospital Balrampur for medical examination of her private parts. The examination was conducted by Lady Doctor Dr. Vinika Bhagat (PW-8), who submitted her report (Ex.P/15).

5. During further investigation, in order to ascertain the date of birth of the victim, a certified copy of the admission and discharge register was obtained from the Headmaster of Primary School Jodhpur and seized in the presence of witnesses vide seizure memo (Ex.P/6), marked as Ex.P/7-C. It was also alleged that appellant Amit Tirkey, in furtherance of a conspiracy, intentionally aided and abetted the commission of aggravated penetrative sexual assault by appellant Aardiyan Lakda upon the minor victim. The underwear of appellant Aardiyan Lakda was seized vide seizure memo (Ex.P/9), along with one Xiaomi mobile phone and a Jio SIM card vide seizure memo (Ex.P/10). From appellant Amit Tirkey, the red-colored CD Dawn 5 motorcycle bearing registration No. CG-15-D-8695, used in the incident, was seized vide seizure memo (Ex.P/11). The appellants were arrested.

6. The potency test of appellant Aardiyan Lakda and examination of his underwear were conducted. Dr. Vikas Patel (PW-10) submitted his report (Ex.P/17) regarding potency, and Dr. Ravi Linkan Bada (PW-9) submitted his report (Ex.P/16) regarding examination of the underwear. Vaginal slides and pubic hair samples were seized vide seizure memo (Ex.P/8), and these articles, along with the accused's underwear, were sent through the Superintendent of Police, Balrampur, to the Forensic Science Laboratory, Ambikapur for chemical examination. Statements of other witnesses were recorded. The statement of the victim under Section 164 of the Cr.P.C. was recorded before the learned Judicial Magistrate First Class, Balrampur.

7. Statements of the witnesses under Section 161 of the Cr.P.C. were duly recorded by the Investigating Officer. After completion of all legal formalities in the investigation, the police of Police Station Chando filed a charge-sheet against the appellants under Sections 363, 366, 376, 506, and 34 of the IPC and Sections 4, 19, and 21 of the POCSO Act before the learned trial Court.

8. The learned trial Court, upon consideration of the material on record, framed charges against appellant Aardiyan Lakda @ Nadua under Sections 363 read with Section 34, 366 read with Section 34, 376(1), and 506 Part II of the IPC, and Section 4 of the POCSO Act. 6 Charges were also framed against appellants Phoolsay Bek and Amit Tirkey under Sections 363 read with Section 34 and 366 read with Section 34 of the IPC, and Section 17 of the POCSO Act. The charges were read over, explained, and understood by the appellants, who denied the same and claimed to be tried.

9. In order to bring home the charges, the prosecution examined 10 witnesses and exhibited 17 documents. The appellants, however, did not examine any witness in their defence, nor did they produce any documentary evidence.

10. The statements of the appellants were recorded under Section 313 of the Cr.P.C., wherein they denied all the incriminating circumstances appearing against them in the prosecution evidence and asserted that they were innocent and had been falsely implicated in the case.

11. Upon appreciation of the oral and documentary evidence adduced by the prosecution, the learned trial Court convicted the appellants and sentenced them in the manner detailed in paragraph 3 of this judgment. Aggrieved thereby, the appellants have preferred the present appeals.

12. Mr. Rohit Sharma, learned counsel, appearing for the appellants in CRA No. 157 of 2024, submits that the appellants have been falsely implicated and that the prosecution has utterly failed to establish their guilt beyond reasonable doubt. It is contended that the prosecution case is fraught with material contradictions, omissions, and inherent 7 inconsistencies, which go to the root of the matter and render the case wholly unreliable. It is further urged that the learned trial Court has committed a grave error in convicting appellant No. 1 under the provisions of the POCSO Act, as the prosecution has failed to conclusively prove that the victim was a minor at the time of the alleged incident. The reliance placed on the Admission and Discharge Register (Ex.P/7) is wholly misplaced, as the date of birth recorded therein is 25.10.2002, whereas the father of the victim (PW-2), in his deposition, has stated the date of birth of the victim to be 25.10.2003, thereby creating a material contradiction regarding the age of the victim. Further, the Headmaster (PW-3), in his cross-examination, has categorically admitted that he is neither the author of the said entry nor in a position to depose regarding its correctness or authenticity.

13. It is further submitted that in the absence of cogent, reliable, and admissible documentary evidence regarding the age of the victim, it was incumbent upon the prosecution to conduct a radiological examination for determination of age. The failure to do so creates a serious lacuna in the prosecution case and renders the applicability of the provisions of the POCSO Act doubtful.

14. Learned counsel further contends that, as per the statement of the victim (PW-1), when her father became angry with her, she went to the house of co-appellant Phoolsay (appellant in CRA No. 1919 of 2023) for taking labour wages. Phoolsay told her that he would pay the money the next day, and she stayed at his house. On the following day, 8 after a conversation on the mobile phone, Phoolsay took the victim to Charidipa Bridge, where appellants Aardiyan Lakda and Amit Tirkey were present with a motorcycle. Thereafter, appellants Aardiyan Lakda and Amit Tirkey allegedly took her to a house situated in village Karcha, and during the night, appellant Aardiyan Lakda took her to a maize field (Makka Badi) behind the house and committed rape upon her. It is argued that despite these allegations, the victim neither raised any alarm nor informed any person that she was being taken against her will or subjected to any forcible act, which reflects unnatural conduct and creates serious doubt about the prosecution version.

15. It is further contended that the medical evidence does not support the prosecution case. As per the MLC report (Ex.P/15), no external or internal injuries were found on the private parts of the victim. The absence of any medical corroboration, when read in conjunction with the material inconsistencies in the prosecution evidence, creates a serious doubt regarding the veracity of the allegations. In such circumstances, the appellants are entitled to the benefit of doubt. Accordingly, it is prayed that the present appeals be allowed and the appellants be acquitted of all the charges.

16. Mr. Samir Singh, learned counsel, appearing for appellant Phoolsay Bek in CRA No. 1919 of 2023, adopts the submissions advanced by learned counsel for the appellants in CRA No. 157 of 2024 and further submits that appellant Phoolsay has been falsely implicated. It is contended that there is no cogent and reliable evidence 9 to establish the ingredients of offences under Sections 363 and 366 of the IPC against him. As per the prosecution case itself, the victim had voluntarily gone to the house of appellant Phoolsay and stayed there, and there is no material to show that he had either kidnapped or abducted her or compelled her to go anywhere against her will. It is further submitted that there is no evidence to show any common intention or active participation on the part of appellant Phoolsay in the alleged offence. Therefore, it is prayed that appellant Phoolsay be acquitted of the charges levelled against him.

17. Per contra, learned counsel for the State has opposed the aforesaid submissions and supported the impugned judgment. It is submitted that the offences alleged are grave and heinous in nature and that the learned trial Court has rightly recorded the conviction after a proper appreciation of the evidence on record.

18. It is further contended that the testimony of the victim is cogent, consistent, and inspires confidence. It is a settled principle of law that conviction can be based solely on the testimony of the victim if it is found to be reliable and trustworthy, even in the absence of corroboration. It is also submitted that the learned trial Court has duly considered all the contentions raised on behalf of the appellants and has recorded findings based on sound reasoning and evidence. Therefore, it is urged that no illegality, perversity, or infirmity is discernible in the impugned judgment of conviction and order of sentence warranting interference by this Court. The appeals, being 10 devoid of merit, deserve to be dismissed.

19. We have heard learned counsel for the parties at length and have perused the entire record of the learned trial Court with due care and circumspection.

20. The foremost question that arises for consideration in the present appeals is whether the victim was a minor, i.e., below 18 years of age, on the date of the alleged incident.

21. For the purpose of determination of the age of the victim, this Court has carefully scrutinized the evidence available on record. The prosecution has primarily relied upon the entry in the Admission- Discharge Register (Ex. P/7) and the testimony of the victim (PW-1). As per the said register, the date of birth of the victim is recorded as 25.10.2002.

22. In her deposition before the learned trial Court, the victim (PW-1) stated her date of birth to be 25.10.2003. The father of the victim (PW-

2), in his testimony, also deposed that the date of birth of the victim is 25.10.2003. He further admitted that, in the Admission and Discharge Register annexed to the case, the date of birth of the victim is recorded as 25.10.2002.

23. The Headmaster (PW-3) of the victim's school deposed that the particulars of the victim were entered at Serial No. 2454 in the Admission-Discharge Register (Ex. P/7), and that the victim was admitted to Class I on 30.01.2008. As per the said register, the date of 11 birth of the victim is recorded as 25.10.2002. However, in his cross- examination, he clearly admitted that the said entries were not made by him and that he could not state the basis or the document on which the date of birth of the victim had been recorded. This admission substantially diminishes the evidentiary value and reliability of the said document.

24. Upon an overall and cumulative consideration of the facts and circumstances of the case, as well as the evidence on record, it becomes apparent that the prosecution has failed to produce cogent, reliable, and legally admissible evidence to conclusively establish the date of birth or age of the victim so as to prove that she was below 18 years of age at the time of the alleged incident. Mere reliance on the school Admission-Discharge Register (Ex.P/7), in the absence of any foundational evidence regarding its authenticity or the source of the recorded date of birth, is insufficient to safely conclude that the victim was a minor.

25. Furthermore, the oral testimonies of the prosecution witnesses on the aspect of age are neither consistent nor definite and do not inspire confidence. In such circumstances, this Court is not persuaded to accept the prosecution's assertion that the victim's date of birth was 25.10.2002 or that she was a minor at the relevant point of time. The benefit of doubt, therefore, must necessarily enure to the appellants.

26. 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 12 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."

27. The Hon'ble Supreme Court in paragraphs 40, 42, 43, 44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, reported in (2011) 2 SCC 385, 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 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 Jaiswal2, 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 Section 35 of the Evidence 15 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."

28. 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. 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 JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima 16 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 scrutinized 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 17 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."

29. 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 paras 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 thedescription 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 19 determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."

16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category

(ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical 20 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 fromthe 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."

30. Upon appreciation of the evidence on record, it emerges that the victim (PW-1) has stated her date of birth as 25.10.2003. PW-2, the father of the victim, in his testimony, has also deposed that the date of birth of the victim is 25.10.2003. He further admitted that, in the Admission and Discharge Register annexed to the case, the date of birth of the victim is recorded as 25.10.2002. He explained that the actual date of birth of the victim is 25.10.2003, but the school authorities mentioned the year as 2002 instead of 2003 on the ground that it would otherwise create difficulty at the time of the Class 10 Board Examination. He also admitted that no affidavit regarding such alteration of the year from 2003 to 2002 was submitted by him either 21 before the school authorities or to the police at the time of lodging the report in the present case. PW-3, the Headmaster of the victim's school, referred to the Admission-Discharge Register (Ex.P/7), wherein the date of birth of the victim is recorded as 25.10.2002. However, in his cross-examination, PW-3 clearly admitted that the relevant entries were not made by him and that he could not state the basis or the document on which the said date of birth had been recorded.

31. In view of the aforesaid evidence, this Court is of the considered opinion that the prosecution has failed to produce reliable, cogent, and legally admissible evidence to conclusively establish the age of the victim. The age of the victim has, therefore, not been proved in accordance with law, giving rise to a serious doubt in the prosecution case on this crucial aspect.

32. In light of the aforesaid inconsistency regarding the date of birth of the victim, and in the absence of any reliable foundational evidence, no primary document such as a birth certificate or any contemporaneous public record (for instance, entries in a Kotwari Register) has been produced by the prosecution to establish that the victim was below 18 years of age on the date of the incident. The school record, i.e., the Admission-Discharge Register (Ex.P/7), cannot be safely relied upon in the absence of proof regarding the source or basis of the recorded date of birth, particularly when the same stands contradicted by the oral testimony of PW-1 and PW-2. Consequently, the material placed on record does not inspire confidence so as to 22 conclusively establish the age of the victim.

33. In the absence of any foundational evidence, it cannot be ruled out that the date of birth recorded in the school documents was based on approximation or assumption. The prosecution has also failed to produce the underlying documents on the basis of which such entries were originally made in the school records. Consequently, the evidence relating to the age of the victim falls short of the standard required to conclusively establish her minority. Despite these deficiencies, the learned trial Court proceeded to hold the victim to be a minor, which, in the considered opinion of this Court, is unsustainable in law.

34. The next question that arises for consideration is whether the appellant, Aardiyan Lakda @ Nadua committed rape upon the victim.

35. The victim (PW-1), in her deposition, stated that she knew the appellants, namely, Aardiyan Lakda and Amit Tirkey, since the date of the incident, and that appellant Phoolsay, being her neighbour, was known to her prior thereto. She deposed that her date of birth is 25.10.2003 and that on the date of the incident i.e., 08.08.2020, she was about 17 years of age. She stated that after being scolded by her father for talking on her mobile phone, she left her house and went to the house of appellant Phoolsay to collect her wages for paddy transplantation work, where she stayed on his asking. On the following evening, appellant Phoolsay took her near Charidipa Bridge, where appellants Aardiyan Lakda and Amit Tirkey were present with a motorcycle, and she was forcibly taken to a house in village Karwa. 23 She alleged that during the night, appellant Aardiyan Lakda took her to the backyard (Makka Badi), threatened her, and committed rape upon her. She further stated that thereafter she was taken to different places and ultimately left near village Nawadih, from where she went to the hospital where her father was admitted, stayed there for about a week, and thereafter, upon returning home, narrated the incident to her parents and lodged the report. She also consented to medical examination (Ex.P/2), and the spot map (Ex.P/3) was prepared in her presence.

36. In her cross-examination, the victim admitted that she left her house on 08.08.2020 after being scolded by her father and that the report was lodged after about two weeks. She further admitted that she was left near Nawadih on the fourth day and that the distance between Nawadih and her village is about 3-4 kilometers. She admitted that despite meeting her aunt and brother, she did not disclose the alleged incident to them, nor did she report the matter during her stay at the hospital, citing her father's illness. She further admitted that even after returning home, the report was not lodged immediately. She denied the suggestions of false implication and maintained that her date of birth is 25.10.2003, though in the admission-discharge register it is recorded as 25.10.2002.

37. The father of the victim (PW-2) corroborated the statements made by the victim, affirming the accuracy and consistency of her account.

38. The medical examination of the victim was conducted on 20.08.2020 at 7:50 p.m. by Dr. Vinika Bhagat (PW-8), when the 17- year-old victim was produced by Female Constable Savitri (Badge No.

46) from Police Station Chando. The victim was identified by a black mole on her forehead and neck. Upon examination, she was found to be physically and mentally sound, with no external injuries on any part of her body. She had 14 teeth in the upper jaw and 13 in the lower jaw, and as per her statement, her last menstrual period commenced on 02.08.2020. On internal examination, no signs of recent injury were found on the genitalia; pubic hair was present and the hymen was old and ruptured. The victim stated that sexual intercourse had occurred on 09.08.2020, following which vaginal secretions were collected, two vaginal slides were prepared, and pubic hair samples were taken, sealed, and handed over for chemical analysis. On the same day, a used blue-colored panty was also produced, on which a red stain was observed, marked, sealed, and sent for chemical examination. In her opinion, the Doctor clearly stated that no definite conclusion could be drawn regarding recent sexual intercourse and categorically confirmed that no signs indicative of recent sexual activity or any injury, either external or on the genitalia, were found during the examination, indicating absence of medical evidence suggestive of forceful sexual intercourse.

39. Dr. Ravi Linkan Bada (PW-9) stated that on 26.08.2020, the appellant, Aardiyan Lakda, aged 27 years, was produced before him by a constable from Police Station Chando for examination of his 25 undergarment. Upon examination, the undergarment was found to be a red-colored half-pant measuring approximately 16 inches in length and 14 inches at the waist. Two dark stains were observed on the front portion, one on each side. In his opinion, the Doctor categorically stated that it could not be conclusively determined whether the said stains were of human semen. The undergarment was thereafter sealed and handed over to the constable for chemical analysis. The examination report prepared in this regard is marked as Ex.P/16.

40. Dr. Vikas Patel (PW-10) stated that on 24.08.2020, the appellant, Aardiyan Lakda, aged 27 years, was produced before him by Constable Rajesh Kumar (No. 1169) from Police Station Chando for the purpose of determining his capability to perform sexual intercourse. Upon examination, the appellant was found to be of normal build and stature, with a beard and moustache, and axillary hair present. On internal examination, pubic hair was present; the scrotum was normal; the testes were properly descended and in their normal anatomical position; and the cremasteric reflex was present. In his opinion, the Doctor clearly opined that there were no signs or symptoms indicating any incapacity to perform sexual intercourse. The examination report prepared in this regard is marked as Ex.P/18.

41. As per the report of the State Forensic Science Laboratory, human spermatozoa were detected on the vaginal slide of the victim (A); however, no semen stains or spermatozoa were detected on the pubic hair (B), panty (C) of the victim, or the undergarment (D) of the 26 appellant, Aardiyan Lakda @ Nadua. The absence of any seminal traces on these material exhibits assumes considerable significance and renders the forensic evidence inconclusive, thereby failing to lend corroborative support to the prosecution case.

42. It is a settled principle of criminal jurisprudence that the prosecution must prove its case beyond reasonable doubt by leading cogent, reliable, and unimpeachable evidence. Suspicion, however strong, cannot take the place of proof. It is equally well settled that a conviction in cases of sexual assault can be based solely on the testimony of the victim, provided that such testimony is found to be wholly reliable and inspires confidence.

43. Further, in Alamelu (supra), where the facts and circumstances were similar to that of the present case, the Hon'ble Supreme Court observed as under:

"51. This Court in Rameshwar v. State of Rajasthan {AIR 1952 SC 54} declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows:-

"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be 27 understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."

52. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence.

xxx xxx xxx

54. Even PW5, Thiru Thirunavukarasu stated that Sekar (A1) had brought the girl with him to his house and told him that he had married her. They had come to see Trichy and requested a house to stay. This witness categorically stated that he thought that they were newly married couple. He had made them stay in Door No. 86 of the Police Colony, which was under his responsibility. On 10th August, 1993, the police inspector, who arrived there at 10.00 p.m. told this witness that Sekar (A1) had married the girl by threatening her and "spoiled her". The girl, according to the prosecution, was recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A1). She did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behavior of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural.

55. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the 28 temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse.

56. In view of the aforesaid, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt any of the offences with which the appellants had been charged. It appears that the entire prosecution story has been concocted for reasons best known to the prosecution."

44. In light of the aforesaid settled principles, this Court has undertaken a careful, cautious and cumulative evaluation of the entire evidence on record. The prosecution case, when tested on the touchstone of probability and normal human conduct, suffers from material inconsistencies and inherent improbabilities. The conduct of the victim, as emerging from her own testimony, appears unnatural and does not inspire confidence. Notably, after the alleged incident, when she was left near village Nawadih, she admittedly met her aunt and brother, yet she did not disclose the alleged occurrence to either of them. Further, despite proceeding to the hospital where her father was admitted and remaining there for about a week in the company of her parents, she did not inform even her father or mother about the alleged incident during that period. Such silence, despite repeated 29 opportunities to disclose the incident to close family members, casts a serious doubt on the veracity of the prosecution version.

45. It is further borne out from the record that the victim was allegedly kept at the house of appellant Aardiyan Lakda, where other family members were present; however, she neither raised any alarm nor made any attempt to escape or inform any person present in the house or neighbourhood. Even otherwise, she did not seek help while being taken from one place to another. Such conduct, in the facts and circumstances of the case, is inconsistent with the normal behaviour expected of a victim of such an offence and materially affects the credibility of her testimony.

46. The medical evidence also does not lend support to the prosecution case. The testimony of the examining doctor clearly establishes that no external or internal injuries suggestive of use of force were found on the body or genitalia of the victim. The hymen was found to be old and ruptured, and no definite opinion could be given regarding recent or forcible sexual intercourse. Thus, the medical findings remain inconclusive and do not corroborate the allegation of forcible sexual assault.

47. The forensic evidence, when appreciated in its entirety, also fails to strengthen the prosecution case. Although human spermatozoa were detected on the vaginal slide of the victim, no semen stains or spermatozoa were found on other material exhibits, including the pubic hair and clothes of the victim and the undergarment of appellant 30 Aardiyan Lakda. The absence of such forensic traces on these vital exhibits assumes considerable significance and creates a serious doubt regarding the manner alleged by the prosecution.

48. In view of the aforesaid deficiencies, the testimony of the victim, which forms the sole foundation of the prosecution case, does not inspire the degree of confidence required for sustaining a conviction. The inconsistencies in her conduct, her failure to disclose the incident at the earliest opportunity to her close relatives, and the absence of reliable medical and forensic corroboration cumulatively render it unsafe to base a conviction solely on such testimony. Consequently, the allegation of sexual assault against appellant Aardiyan Lakda is not proved beyond reasonable doubt.

49. So far as the offences under Sections 363 and 366 of the IPC, as alleged against appellants Amit Tirkey and Phoolsay Bek, are concerned, the essential ingredients of kidnapping or abduction with the requisite intent are not established. The evidence on record indicates that the victim had voluntarily left her house and had initially gone to the house of appellant Phoolsay of her own accord. There is no cogent and reliable evidence to establish that she was taken or enticed away from lawful guardianship by either of these appellants by use of force, deceit, or inducement. Further, the prosecution has failed to establish that the victim was abducted with the intent that she may be compelled to marry or forced into illicit intercourse. In the absence of proof of such essential ingredients, no offence under Sections 363 or 31 366 IPC is made out against appellants, Aardiyan Lakda @ Nadua, Amit Tirkey and Phoolsay Bek.

50. Consequently, this Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt against any of the appellants. All three appellants, namely, Aardiyan Lakda @ Nadu, Amit Tirkey in CRA No. 157 of 2024 and Phoolsay Bek in CRA No. 1919 of 2023, are therefore, entitled to the benefit of doubt.

51. Accordingly, the appeals are allowed. The impugned judgment of conviction and order of sentence dated 29.09.2023 are hereby set aside. All the appellants are acquitted of all the charges levelled against them. Appellant No. 1, Aardiyan Lakda @ Nadu and appellant No. 2, Amit Tirkey, who are reported to be in custody, shall be released forthwith, if not required in any other case.

52. In view of the above, I.A. No. 1 of 2024, application for suspension of sentence and grant of bail stands disposed of.

53. Keeping in view the provisions of Section 437-A of the Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellants in CRA No. 157 of 2024 are 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/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear 32 before the Hon'ble Supreme Court.

54. The appellant, Phoolsay Bek in CRA No. 1919 of 2023, who is on bail, is not required to surrender in view of his acquittal. However, in compliance with Section 437-A of the Cr.P.C. (now Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023), his bail bond shall remain in force for a further period of six months.

55. The Office is directed to forthwith transmit the learned trial Court record along with a certified copy of this judgment to the Court concerned for compliance and necessary action.

                              Sd/-                               Sd/-
                    (Ravindra Kumar Agrawal)                (Ramesh Sinha)
                             Judge                           Chief Justice




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