1 2025:CGHC:4658-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1139 of 2023 Chela Srivas S/o Ramesh Srivas, Aged About 25 Years R/o Masanganj Madhya Nagri Chowk, Police Station Civil Line, District Bilaspur Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Civil Line, District Bilaspur Chhattisgarh. ---- Respondent (Cause title taken from Case Information System) For Appellant : Mr. Ravish Verma, Advocate For Respondent/State : Mr. Malay Kumar Jain, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri R avindra Kumar Agrawal , Judge Judgement on Board Per Ramesh Sinha, C.J. 27/01/2025 1. Present criminal appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure against the impugned judgement of conviction and sentence dated 11.04.2023, passed by learned First F.T.S.C. (POCSO)/Additional Sessions Judge, Bilaspur in Digitally signed by VEDPRAKASH DEWANGAN 2 Special Sessions Case No. 92 of 2022, whereby the appellant has been convicted and sentenced in the following manner: Conviction Sentence U/s. 4(2) of POCSO Act R.I. for 20 years and fine of Rs. 500/-, in default of payment of fine further R.I. for 4 years. U/s. 323 of IPC Imprisonment for 06 months and fine of Rs. 100/-, in default of payment of fine further R.I. for 15 days. Both the sentences are directed to be run concurrently. 2. 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. 3. Brief facts of the case are that, on 25.02.2022, the victim/PW-2 lodged a written complaint (exhibit P-5) to the police with the allegation that at about 5:30 p.m. when she had gone to answer the call of nature at public toilet, the appellant entered to her toilet and committed rape upon her. When she shouted, he slapped her. By the assault made by the appellant, she was feeling pain on her neck and when she shouted, her sister/PW-4 came there and after seeing her, the appellant fled away. She informed the incident to her parents and then came to lodge the report. On the basis of the written complaint/exhibit P-5, the FIR/exhibit P-6 was registered for the offence under Sections 3 376(3) and 323 of IPC and Section 4 of POCSO Act against the appellant. The victim was sent for her medical examination to District Hospital Bilaspur, where PW-7, Dr. Rama Ghosh has medically examined her and gave report/exhibit P-15. While examining the victim, the doctor has not noticed any external injuries on her body and gave her report/exhibit P-15. She opined that the victim was habitual for sexual contact. Two slides of vaginal swab were prepared, sealed and handed over to police for its chemical examination. Spot map/exhibit P-2 was prepared by the police and exhibit P-3 was prepared by Nazul Inspector, Bilaspur. With respect to the age and date of birth of the victim, the police has seized the school register vide seizure memo/exhibit P-20 and after retaining the attested true copy of the school register/exhibit P- 21C, the original register was returned back to the school. The appellant was arrested on 21.05.2022 and he too was sent for his medical examination to District Hospital Bilaspur, where PW-9, Dr. B.D. Singh has medically examined him, who gave his report/exhibit P-17. According to the medical report of the appellant, he was found capable to perform sexual intercourse. The vaginal slides and underwear of the victim as well as underwear of the appellant were sent for its chemical examination to Regional FSL Bilaspur, from where report/exhibit P-28 was received. According to the FSL report, the semen and sperm were found on the sent articles. 4 Statement of the witnesses under Section 161 of CRPC have been recorded. Statement of the victim under Section 164 of CRPC has also been recorded. After completion of usual investigation, charge sheet was filed before the learned trial Court for the offence under Sections 376, 323 of IPC and Section 4 of POCSO Act. 4. The learned trial Court has framed charge against the appellant for the offence under Sections 376(3), 323 of IPC and Section 4(2) of POCSO Act. The appellant abjured his guilt and claimed trial. 5. In order to prove the charge against the appellant, the prosecution has examined as many as 15 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that the mother of the victim is his relative and there was a property dispute exists between them since long. Therefore, he has been falsely implicated in the offence. At the time of incident, he was in his shop up to 11:00-12:00 p.m. and he did nothing and has been falsely indicated in the offence. One defence witness has been examined by the appellant in his defense. 6. After considering the entire evidence available on record, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgement. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution 5 witnesses, which cannot be made basis for convicting him in the alleged offence. There is no legally admissible evidence with respect to age and date of birth of the victim that she was minor and less than 18 years of age at the time of incident. The school register has not been proved in accordance with law by examining its author and the basis on which the entries have been made in the school register have also not been proved. There is no other evidence, like; Kotwari Register, Birth Certificate or Ossification Test Report, therefore, in absence of any cogent and clinching evidence, the victim cannot be held to be minor on the date of incident. He would further submit that no injuries have been found on the body of the victim. *******He would further submit that the victim, being a major girl, having love affair with the appellant and she herself engaged in making consensual physical relation with him. Since her elder sister had seen them together in the public toilet, she informed it to her parents and then the victim had lodged a report under the pressure of her parents. The evidence of the victim as well as other evidences are not sufficient and their evidence are not of that sterling quality, which is required to hold conviction in the offence in question. Yet, the learned trial Court has convicted the appellant, which is bad in law and the same is liable to be set aside by acquitting the appellant for the alleged offences. 8. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable 6 doubt, but for minor omission or contradictions, the evidence of prosecution witnesses are fully reliable. The age of the victim has been proved by the school register/exhibit P-21C, which has been corroborated by her progress report card/Article A. The victim was found to be minor on the date of the incident and she was subjected to sexual intercourse by the appellant, which does amounts to offence of rape, because the victim was minor at that time and she cannot give her consent in making physical relation. The evidence of the victim/PW-2 has been supported by her sister/PW-4, who saw them together in the public toilet. Therefore, from the entire evidence produced by the prosecution in the case, unerringly pointed towards guilt of the appellant and the learned trial Court has rightly convicted and sentenced him, which needs no interference. 9. We have heard the learned counsel for the parties and perused the records and evidence adduced. 10. 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 ? 11. The prosecution has mainly relied upon the school register/exhibit P- 21C and progress report card of class 8th of the victim/Article A. The school register/exhibit P-21C is sought to be proved by PW-11, who is the teacher of the school. He stated in his evidence that he was incharge Headmaster of Subhaniya Anjuman Islamiya Primary School, Bilaspur since 2016. The police has seized the school register from 7 him with respect to the date of birth of the victim vide seizure memo/exhibit P-20. After retaining the attested true copy of the school register/exhibit P-21C, the original register/exhibit P-21 was returned back to the school. He brought the original register with him and as per the entries made in the school register, the date of birth of the victim is 18.07.2009. In cross-examination, he admitted that the relevant entries with respect to the date of birth of the victim has not been made by him in the school register. He further admitted that in the document/exhibit P-19, the name of the father and mother of the victim is different than the names mentioned in the school register/exhibit P- 21. He further admitted that the school register is of Marimai School and the said Marimai School is a branch of their school. He further admitted that there is no document annexed with the school register with respect to the date of birth of the victim. 12. PW-12 is the Principal of Subhaniya Anjuman Islamiya Girls Higher Secondary School, Bilaspur. He is the witness of seizure memo/exhibit P-20 by which the school register has been seized from the in-charge headmistress of the school. He is only the witness to the effect of seizure of the school register and he is unaware about the school register. 13. PW-11, who is the in-charge headmistress of Subhaniya Anjuman Islamiya Primary School Bilaspur has stated in her evidence that the police has seized the school register vide seizure memo/exhibit P-20 and after retaining the attested true copy of the school register/exhibit P-21C, the original register/exhibit P-21 has been returned back to the 8 school. As per the school register, the date of birth of the victim is 18.07.2009. She too has admitted in her cross-examination that the relevant entries with respect to the date of birth of the victim has not been made by her. She issued the document/exhibit P-19 to police. She admitted that in the document/exhibit P-19 and school register/exhibit P-21, the name of parents of the victim are different. She further admitted that there is no document annexed with the school register with respect to the birth certificate or date of birth of the victim. 14. 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 examined. 9 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 (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:- 10 "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 Act will have to apply the same standard. No different standard can be 11 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." 15. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. xxxx xxxx 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 12 basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub- section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a 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 13 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 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." 16. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under: "14, Section 94 (2)(iii) of the 33 Act clearly Indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the 14 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 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 15 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: "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 16 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." 17. Reverting to the facts of the present case, we again examine the evidence of victim/PW-2. She stated in her evidence that she did not know her date of birth. When the leading question was asked from her by the prosecution, she admitted that her date of birth is 18.07.2009 and she is presently aged about 13 years. In cross-examination, she stated that she did not know as to on what age she has got admitted in the school. She had given her mark-sheet/Article A to the police. 18. PW-1, the mother of the victim, has stated that she did not know her date of birth, but she is aged about 15 years. When the leading question was asked from this witness also, she admitted that the date of birth of the victim is 18.07.2009. 19. PW-3, father of the victim, has also stated that he did not know her date of birth, but she is aged about 15 years. He too has been asked the leading question by the prosecution and then he disclosed that the date of birth of his daughter is 18.07.2009. In cross-examination, he stated that he has not gone to her school for her admission but his 17 wife had gone to her school. He admitted that his wife is having knowledge of the date of birth of the victim and she has got disclosed her date of birth in the school at the time of her admission. He did not know as to on what age the victim has got admitted in the school. 20. PW-4, the elder sister of the victim, has also stated that she did not know her date of birth, but she is aged about 15 years. In cross- examination, she stated that she has not brought her own birth certificate. The victim is 4-5 years younger than her. 21. PW-5, another sister of the victim, has also stated in her evidence that she did not know the date of birth of the victim, but she is aged about 15 years. In her cross-examination, she stated that there is difference of 2 years in each of her brother and sister. 22. From the aforesaid oral evidence, the age of the victim cannot be determined on the basis of inconsistent oral evidence, particularly in the fact that none of the witnesses have disclosed in their chief examination about date of birth of the victim and all of them have stated that they did not know her date of birth. In absence of any cogent and clinching evidence, it would be very difficult for this Court to hold that the victim was minor on the date of incident. When the prosecution can very well collect the relevant documentary evidence or they may conduct the ossification test of the victim to determine her age, but they did not do so. Therefore, in absence of any cogent and clinching evidence, it cannot be said that the prosecution has proved 18 the fact that the victim was minor and less than 18 years of age on the date of incident. 23. So far as the offence of rape is concerned, we again examine the evidence of the victim/PW-2. She stated in her evidence that on the date of incident when she had gone to answering the call of nature, the appellant came inside the toilet and committed rape upon her. When she shouted, the appellant fled away. She further stated that when her sister came there, after hearing her noise, the appellant was already fled away from the place and she informed the incident to her sister. Thereafter, she informed all her family members and lodged the report/exhibit P-5. The report/exhibit P-5 was scribed by her elder sister and she signed over it. She was being sent for her medical examination. ******* When the leading question was asked from her, she admitted that the appellant has slapped her and committed rape upon her and after hearing her shout, her sister came there. In cross-examination, she stated that she knew the appellant since long. The house of the appellant is just in front of her house. She further admitted that in the public toilet, there was a facility to bolt from inside the toilet and she has got bolted the door of the toilet from inside. But she voluntarily stated that the appellant opened it and came inside the toilet. She further stated that when her sister came there, the door of the toilet was bolted from inside. She admitted that before her sister came, the appellant has already fled away from the place. The appellant remained for half an hour with her inside the toilet. She denied the 19 suggestion given by the defence that she was having affair with the appellant and she voluntarily engaged in making sexual intercourse with him. The PW-4, sister of the victim, who allegedly came there after hearing the shout of the victim, has stated in her evidence that on the date of incident at about 5:00-5:30 pm, the victim had gone to answering the call of nature at public toilet. After some time, she heard the noise and when she had gone there, she saw that the appellant coming out from the toilet and fleeing away. When she had gone to her sister, she disclosed that the appellant has committed rape upon her and slapped her. By the assault made by the appellant, she received injuries on her neck. Thereafter, she immediately informed the incident to her parents. ******* In cross-examination, she stated that in her house only one toilet is there, which are being used by all the persons who were residing in the Chawl. There were five houses in the Chawl and the tenants were residing. She admitted that the door of the toilet was having bolt on the inner side of the door. She further admitted that she bolted the door from inside. She further stated that when she came to know about the incident, she raised alarm and then 4-5 persons of the vicinity gathered there. She did not disclose the incident to the brother of the appellant. She admitted that the appellant was her relative but their relationship was over since long back. She further admitted that she did not see the incident. She further admitted that she disclosed about the incident on the basis of information given by the victim. She voluntarily stated that she had seen the appellant fleeing from the 20 place and the rest of the incident she disclosed on the basis of information given by the victim. 24. PW-1, the mother of the victim has stated in her evidence that on the date of incident at about 4:30-5:00 pm, her younger daughter informed her about the incident by telephone. When she came to know about the incident, she took the victim to the police station for lodging of the report. In her cross-examination, she stated that the written complaint was scribed by her elder daughter and the victim has signed over it. She further admitted that the toilet was the public toilet, it was used by the persons of the vicinity. She too have admitted that the house of the appellant is just in front of her house and the appellant is her relative. Her mother and maternal grandmother of the appellant are sisters and the appellant is cousin brother of the victim. She too has denied their affair. She has also admitted that the door of the toilet was having bolt from inside. 25. PW-3, father of the victim is also the witness of the same fact which the mother of the victim/PW-1 has stated. He too has stated on the basis of the information disclosed by the victim to them. 26. PW-5, another sister of the victim has stated in her evidence that on the date of incident, her younger sister has informed her about the incident by telephone and after coming into knowledge of the incident she came to her parents’ house and she accompanied the victim up to the police station and she scribed the written complaint/exhibit P-5. The police persons have gave her the idea, on which she made the 21 complaint/exhibit P-5. Her evidence having not much relevance because she stated only about the fact whatever she heard from her sister or from any other source. 27. The victim was being medically examined by Dr. Rama Ghosh/PW-7, who found no external injuries on her body and no sign of any protest or struggle were found. Had she been subjected to forceful sexual intercourse by the appellant, she would have tried to save herself and in that process she would have received certain injuries on her body, even no injuries have been found on her body. The victim/PW-2, her sister/PW-4 and her mother/PW-3 have stated in her evidence that the victim has received injuries on her neck by the assault made by the appellant, but when the victim was medically examined by the doctor on 20.05.2022, no injuries have been found on her neck. The appellant was also medically examined by PW-9/Dr. B.D. Singh who also not found any external injuries on the body of the appellant. The victim could have gave the nail scratch mark or teeth bite on the body of the appellant while she was allegedly subjected to rape by the appellant inside the toilet, but she did nothing and and has not stated that she tried to give nail scratch mark or teeth bite on the body of the appellant. The place on which the alleged incident is said to have been occurred is a visible place and public toilet. As per the evidence of the victim, the appellant remained with her for about half an hour which is not possible for anyone that he remained inside in a toilet, in a place within the public view for about half an hour without any shout or noise that too in such a close vicinity, where others 22 houses are adjoining and public of the vicinity are using the said toilet. All these state of affairs makes the evidence of the victim doubtful that she was subjected to forceful sexual intercourse by the appellant. 28. 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: “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 23 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 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.” 29. 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 24 testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 30. 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. 31. 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 21.05.2022. He be released forthwith if not required in any other case. 32. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik 25 Suraksha Sanhita, 2023, the appellant- Chela Srivas 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. 33. 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