1 2025:CGHC:8853-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 803 of 2024 1 - Nitesh Kumar Sahu S/o Birendra Sahu, Aged About 23 Years R/o Village Bhoinapar, P.S. Balod, District- Balod (C.G.) ... Appellant(s) versus 1 - State of Chhattisgarh Through S.H.O. Police Station- Balod, District- Balod (C.G.) ... Respondent(s) For Appellant(s) : Mr. B. P. Singh, along with Mr. Sudhanshu Kumar Singh, Advocate. For Respondent(s) : Mr. Hari Om Rai, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J 20/02/2025 1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, (for short the, Cr.P.C.) against the impugned judgment of conviction and sentence dated 08.04.2024 passed by Learned Special Judge (Protection of Children form Sexual Offences Act, 2012)/Additional Sessions Judge (FTSC) Balod, District Balod (C.G.) in Special Sessions Case No. 2 44/2020, whereby the appellant has been convicted and sentenced in the following manner: Conviction Sentences U/s 366 of I.P.C. RI for 05 years and fine amount of Rs. 2000/- in default of payment of fine 1 years Additional RI. U/s 6 of POCSO RI for 20 years and fine amount of Rs. 2000/- in default of payment of fine 01 years Additional RI U/s 3(2)(v) of SC/ST Act Life imprisonment and fine amount of Rs. 1000/- in default of paying fine 01 years Additional RI. All the sentences shall run concurrently. 2. Brief facts of the case are that on 13.05.2020 the victim PW-1 lodged a report to the police against the appellant that in the year 2019, the appellant proposed her that he is loving her and wanted to marry with her and have made physical relation with her on the pretext of marriage. He repeated his act second time also on the pretext of marriage on 13.02.2020, he made physical relation with her on the 3rd time on the same assurance on 12.05.2020 when the appellant refused to marry with her, then she disclosed the incident to her parents and lodged the report. On the report of the victim (PW-1) the FIR Ex.P/1 has ben registered against the appellant for the offence under Section 366, 376 (2)(n) of IPC and Section 4, 5 (l), 6 of Protection of Children from Sexual Offences Act, 2012 (in short, 'POCSO' Act) and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, 'the SC/ST Act'). 3. The victim was sent for her medical examination to District Hospital, Balod where she was medically examined by PW-4 Dr. Sonam who gave her report Ex.P/8 while medically examined the victim no external injuries have been found on the body, her hymen was found old ruptured and opined that as per the examination there is old ruptured healed hymen so there is possibility of 3 physical relationship or sexual contact. The doctor has also considered that it was an old history of sexual contact, no slide of her vaginal swab has been prepared. 4. Spot map Ex.P/4 was prepared by the Patwari and Ex.P/3 was prepared by the police. With respect to the age and date of birth of the victim the police seized school register from Government Middle School, Bhoinapar vide seizure memo Ex.P/6 and after retaining attested true copy of the school register article A- (C), original register was return back to the school. The high school certificate-cum-mark-sheet and social status certificate of the victim has also been seized vide seizure memo Ex.P/11. The appellant was arrested on 14.05.2020 and he too was sent for his medical examination to District Hospital, Balod where he was medically examined by PW-6 Dr. Nitish Sao who gave his report Ex.P/10 and found the appellant capable to perform sexual intercourse. 5. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and statement of the victim under Section 164 of Cr.P.C. have also been recorded and after completion of usual investigation charge-sheet was filed before the learned trial Court for the offence under Section 366, 376(2)(n) of IPC, Section 4, 5 (l), 6 of POCSO Act, and Section 3(2)(v-a) of SC/ST Act. 6. The learned trial Court has framed charge against the appellant for the offence under Section 363, 366, 376(2)(i)(n) of IPC, Section 5 (l), 6 of POCSO Act, and Section 3(2)(v) of SC/ST Act. The appellant denied the charge and claimed trial. 7. In order to prove the charge against the appellant the prosecution has examined as many as 10 witnesses. Statement of the appellant under Section 313 of Cr.P.C. have also been recorded, in which he denied the circumstances appears against him, plead innocence and have submitted that the victim was loving him, they used to talk with each other through mobile phone. Her father had seen her talking on mobile phone, therefore, a 4 meeting was also convened in her house. The victim was insisting for marriage with him and her parents was also agreed to marriage of the victim with him. Since they belongs to different caste, marriage between them was not possible. The father of the victim have scolded and beaten her, she was taken to Balod Hospital where appellant was being called. But the victim was persisting her wish that she wanted to marry with him. The father of the victim has lodged a false report against him, he is innocent and he be acquitted from the offence. 8. After appreciation of oral as well as documentary evidence led by the prosecution the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 9. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradiction in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the alleged offence. There is no legally admissible evidence with respect to age and date of birth of the victim as to she was minor on the date of incident and less than 18 years of age. The school record produced by the prosecution is not proved in accordance with law. The date of birth mentioned in the high school certificate is also based on the said school record and there is no basis on which her date of birth has been recorded in the school record. There is variance in the date of birth of the victim in her evidence and the evidence of the witnesses and in the facts and circumstances of the present case, her high school certificate would not be sufficient to hold her minor though it was produced by the prosecution as the evidence of date of birth. He would further submits that there is no birth certificat, kotwari register or ossification test report of the victim. He would further submits that the victim was in love affair with the appellant and she herself engaged in making consensual 5 physical relation with him repeatedly without raising any objection. Had she been subjected to forceful sexual intercourse by the appellant, she would have immediately informed the incident to her parents or made any complaint but she did nothing. She has not raised any alarm at the time of commission of the offence and has not protested. He would also submits that various love letters have been written by the victim to the appellant which further proves that she was in love affair with the appellant and engaged in making consensual physical relation with him, therefore, no offence against the appellant under Section 366 or 376 of IPC, Section 6 of POCSO Act and Section 3(2)(v) of SC/ST Act are made out against him and he is entitled for acquittal. 10. Per contra, learned counsel for the State opposes the submissions made by learned counsel for the appellant and have submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of the prosecution witnesses are fully reliable. The age of the victim has been proved by the prosecution by school record as well as high school certificate which is the admissible piece of evidence. The appellant could not be able to rebut the said entries in the high school certificate and from the said document the victim is found to be minor on the date of incident and she was subjected to sexual intercourse by the appellant. Due to her minority, victim was not able to give her consent. But she was subjected to sexual intercourse by the appellant which does amounts to offence of rape. The appellant has committed rape upon the victim on the pretext of marriage and ultimately refused to marry with her. There is overwhelming evidence available on record against the appellant which has rightly been appreciated by the learned trial Court and the appellant has been convicted and sentenced. The appeal filed by the appellant does not have any merit and liable to be dismissed. 11. We have heard learned counsel for the parties and perused the record of the 6 case with utmost circumspection. 12. 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? 13. The prosecution has mainly relied upon the school register article-A-(C) which is sought to be proved by PW-3 who is the Headmaster of the school and article B-C which is sought to be proved by PW-8 father of the victim. 14. PW-3, is the Headmaster of the school have stated in his evidence that he is posted at Government Middle School, Bhoynapar as Headmaster from 18.06.2005 to 07.03.2022. The police has seized the school register with respect to the date of birth of the victim vide seizure memo Ex.P/6. After retaining attested true copy of the school register article-A-(C), the original register was return back to him and he brought original register with him. As per the entries made in school register, the date of birth of the victim is 27.06.2003. The school register article A-C is of Class-6th in which the victim has got admitted on the basis of mark-sheet of Class-5th and TC. In cross- examination he admitted that in the school register article-A-(C), it has not been mentioned as to on what basis the date of birth of the victim is recorded. He further admitted that he has not submitted any document with respect to the birth certificate, any certificate issued by the Municipality or Gram Panchayat, Kotwari register or certificate obtained from the doctor. He further admitted that he could not know about the entries made in her primary school register. He further admitted that at the time of her admission in middle school, no document of her primary school have been produced before him. He further admitted that he could not tell as to what date has been mentioned in her primary school register or birth certificate. He further admitted that in the school register article-A-C there is no signature of her parents and who has got her admitted in the school also not mentioned in it. From the evidence of this witness, it is quite vivid that though he stated that he was the Headmaster of the school since 2005 to 2022 and 7 while giving her admission in the school the documents obtained by him has not been produced before the Court which reflects that though he is the author of the school register but the basis on which the entries have been made in the school register is not produced by the prosecution. There is no documentary evidence with respect to the initial schooling of the victim. The school register article-A-C is of Class-6th and there is no entries made in it that on what basis she has got admitted in the school in Class-6th. 15. PW-1, is the victim have stated that her date of birth is 27.06.2003. In cross- examination she stated that she has not disclosed her date of birth in her police statement Ex.D/1 and disclosed her date of birth first time before the Court. 16. PW-7, is the mother of the victim have not disclosed any date of her birth but have stated that year of her birth is 2003 and at the time of incident she was aged about 17 years. In cross-examination she admitted that she did not know her own date of birth and date of marriage. She further admitted that she did not disclosed before the police that the year of the birth of the victim is 2003. She further admitted that the high school mark-sheet and social status certificate has not been seized by the police in her presence. She further admitted that in which year the victim was got admitted in Class-1 st, she did not know. 17. She further admitted that the colleagues of the victim have already been passed the college examination. She also admitted that at the time of incident the victim have already studied for about 14 – 15 years and she was attains the age of marriage. She further admitted that she did not know her actual age. 18. PW-8, is the father of the victim have stated that he did not know the date of birth of the his daughter but she is aged about 18 years. He produced the original mark-sheet of Class-10th which is tallied with its copy article-B-(C). 19. From the evidence of these witnesses except the mark-sheet of Class-10th 8 there is no other authentic document produced by the prosecution to prove the age of the victim but the fact remains that the school record of initial schooling of the victim has not been produced by the prosecution. The entries of date of birth of the victim is recorded in Class-10th mark-sheet. On the basis of her initial schooling but the same has not been produced by the prosecution. 20. The admissibility of evidentiary value of school records of the victim for determination of her age has been considered by Hon’ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. 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 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. 9 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. held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 21. 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. 10 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced 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 11 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.” 22. 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. Stateof Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit 12 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.” 23. From the peculiar facts and circumstances of the case as well as in view of the law laid down by Hon’ble Supreme Court in the aforesaid cases, although the Class-10th high school certificate of the victim have been produced by the prosecution to prove her age, this Court found it not sufficient to hold that the victim was minor on the date of incident as the basis of which the entries have been made in the school register is not produced by the prosecution with respect to her initial schooling. Her parents are not able to give any date of her birth and there is no other evidence available on record. Therefore, the finding recorded by the learned trial Court with respect to her age is found liable to be interfered with, by holing that the prosecution could not prove the age of the victim that she was minor and less than 18 years of age on the date of incident. 24. So far as the offence of kidnapping for illicit intercourse and rape are concerned, we again examine the evidence of the victim. 25. PW-1, the victim have stated in her evidence that the appellant has proposed 13 her that he wanted to marry with her and she also agree with the proposal of the appellant. They used to talk to each other through mobile phone which came into knowledge of her parents. When her family members were asked from the appellant then he refused to marry with her. She further stated that in the year 2019, the appellant came to her house and made physical relation with her. Thereafter, he took her to Dhamtari by his motorcycle where also he made physical relation with her. He again called her by his mobile phone and when she had gone to the appellant's house, he again made physical relation with her. When the appellant refused to marry with her she lodged the report. In cross-examination she stated that she knew the appellant since 2019 and she had gone to the appellant's house in the year 2020. They used to talk with each other by mobile phone. She also stated in her cross-examination that a meeting was also convened in the house of Sarpanch, in which she disclosed that both of them were having love affair with each other and wanted to marry. 26. In further cross-examination she stated that she knew the appellant since her school life and used to talk with each other. She admitted that since they were in love affair they used to talk with each other. The appellant gave a mobile phone as gift for talking with him. She further admitted that when she was talking with the appellant by mobile phone her father had seen her and scolded her. A meeting was also convened in the village and in the said meeting she disclosed about her relation with the appellant. He admitted that the love letters Ex.-D/1 to Ex.-D/6 that she wrote to said love letters and it is in her own hand-writing. She also admitted that the said love letters have been given to him. She admitted that when the appellant stated that due to the difference in their caste their marriage would not be possible, she lodged the report. 27. PW-7, is the mother of the victim have stated that one year back, the victim disclosed her that she is having love affair with the appellant and wanted to 14 marry with him. When she was talking with the appellant by mobile phone, her father had seen her and scolded her. From the evidence of the mother of the victim, it is also vividly appears that she was having full knowledge of her affair with the appellant and she insisted that she will marry with the appellant. She admitted that till the lodging of the report, her daughter had not disclosed that she was having physical relation with the appellant. She also admitted that when her daughter was being taken to Hospital, the appellant came there and disclosed that due to difference in their caste, the marriage could not be possible but he would marry with her after attaining her age of majority. 28. PW-8, is the father of the victim have also stated in his evidence that he did not know the incident and it is only the victim could have disclosed about the incident. When the leading question has been asked from him, he shown his ignorance about the incident. In cross-examination he admitted that when the victim was being taken to Hospital for her treatment, she was saying that she wanted to marry with the appellant. He scolded her and slapped her, by which she went in unconsciousness and was being taken to hospital. He further admitted that due to the dispute with the victim and the denial of the appellant for marriage due to her age, they lodged the report against him. He further admitted that in the meeting the victim has not disclosed about their physical relation. 29. PW-4, Dr. Sonam who medically examined the victim has not found any external injuries on her body and since it was the old history of physical relation, no vaginal slide have been prepared. 30. From all these evidences, it is quite vivid that the victim was in love affair with the appellant and both of them engaged in making consensual physical relation. She herself wrote love letters to the appellant Ex.-D/1 to Ex.-D/6 which have been admitted by her in her evidence. She engaged in making physical relation with the appellant without raising any objection and it is only 15 when the appellant refused to marry with her either by the reason that she belongs to different caste or her age or she has not attains the age of majority, the report has been lodged whereas it is found from the evidence that the prosecution could not established that she was minor on the date of incident and engaged in making consensual physical relation with the appellant. Therefore, in the facts and circumstances of the case no offence of kidnapping the victim for illicit intercourse or the offence of rape are made out and he is entitled for benefit of doubt. 31. So far as the conviction and sentence under Section 3(2)(v) of SC/ST Act is concerned, the accused can be convicted for the offence under Section 3(2) (v) of the SC/ST Act only when he committed any offence under the Indian Penal Code or punishable with imprisonment for a term of 10 years or more against the person. Section 3(2)(v) of SC/ST Act is re-produced hereinbelow: 3. Punishment for offences of atrocities. - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe. XXX XXX XXX (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribes. XXX XXX XXX (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine; 32. From perusal of the aforesaid evidence 3(2)(v) of the SC/ST Act and also in the facts and circumstances when no offence under the Indian Penal Code is found proved against the appellant, he cannot be convicted for the offence under the SC/ST Act, therefore, his conviction under Section 3(2)(v) of the SC/ST Act is also not liable to be sustained. 16 33. The version of the victim commands great respect and acceptability, but if there are some circumstances which cost some doubt in the mind of the Court on the veracity of the victim evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omission in the statement of the victim and other witnesses. The law is well-settled that in a case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to being home the charges levelled against the appellants beyond reasonable doubt, which the prosecution has failed to do in the instant case. 34. In the result the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentences are hereby set aside. The appellant is acquitted from the alleged offences. The appellant is reported to be in jail since 14.05.2020. he be released forthwith if not required in any other case. 35. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Nitesh Kumar Sahu 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 grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 36. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.03.03 18:52:56 +0530