1 2025:CGHC:5483-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 918 of 2021 Rajeshwar Lodha @ Rajeshwar Ram Lodha @ Rajeshwar Dhanwar S/o Shri Asli Kumar Aged About 24 Years Caste Dhanwar (Schedule Tribe) R/o Village Chhote Gumda, Police Station Gharghora, District Raigarh, Chhattisgarh. ... Appellant(s) (In Jail) versus State of Chhattisgarh Through The Station House OfÏcer, Police Station Gharghora, District Raigarh, Chhattisgarh. ..Respondent(s) For Appellant : Mr. Rishi Rahul Soni, Advocate. For Respondent/State : Mr. Sakib Ahmed, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice . 30.01.2025 1. Heard Mr. Rishi Rahul Soni, learned counsel for the appellant. Also heard Mr. Sakib Ahmed, learned Panel Lawyer, appearing for the respondent/State. 2. This criminal appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.02.05 11:38:48 +0530 2 impugned judgment of conviction and order of sentence dated 06.08.2021, passed by the learned Additional Sessions Judge, Gharghora, District Raigarh (C.G.) in Special Criminal Case (POCSO Act) No. 14 of 2019, whereby the appellant has been convicted and sentenced as under: Conviction Sentence Section 376 of the Indian Penal Code (for short, ‘IPC’) Rigorous imprisonment (for short, ‘R.I.’) for 20 years and fine of Rs.1,000/-, in default of payment of fine, 02 months R.I. more. Section 506(II) of the IPC R.I. for 01 year and fine of Rs. 500/-, in default of payment of fine, 01 month R.I. more. All the sentences were directed to run concurrently. 3. Brief facts of the case are that, on 20.04.2019, the father (PW-3) of the victim, lodged a written complaint (Ex.P/6) at the Gharghora Police Station. He stated that on 19.04.2019, at around 1:30 a.m., he woke up to urinate and found the back door of the house open. When he checked the room of the victim, she was not there. After enquiring around, he returned home to find the victim inside. She told him that she had gone out to urinate around 1:00 a.m. when the accused dragged her to a Mahua bush and committed a wrongful act. When she screamed, he threatened to kill her and forcibly raped her by gagging her mouth. On the basis of above written complaint, a First Information Report (FIR) (Ex.P/7) bearing Crime No. 76 of 2019 was registered for the offences punishable under Sections 3 376 and 506 of the IPC, and the case was investigated under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). During the investigation, it was found that on 19.04.2019, the victim and her sister were sleeping in one room, while the father of the vcitim was sleeping in another room. At around 1:30 a.m., the father of the victim woke up to urinate and found the door open. When he did not find the victim in her room, he made enquiries around. When he returned home, the victim was in her room. She stated that she had gone out to urinate towards the garden when the accused caught her from behind, pressed her mouth, and forcibly dragged her to the Mahua bush, where he had physical relations with her. When she screamed, he threatened to kill her. A a visual map of the incident spot was prepared vide Ex.P/16, and the victim was examined. A radiologist conducted an age test, and the educational documents of the victim were obtained. The statement of the victim was recorded before the Child Welfare Committee under Section 164 of the CrPC. The vaginal slide and panty of the victim, along with the semen slide and underwear of the accused, were sent for chemical examination. 4. Statements under Section 161 of the Cr.P.C. of the witnesses were recorded by the police. After completing the entire investigation, charge- sheet was filed before the learned Additional Sessions Judge, Gharghora, District Raigarh (C.G.) for the commission of offence punishable under Sections 376 and 506-II of the IPC as well as Section 4 of the POCSO Act. 5. Learned trial Court framed charges for the offences punishable under Sections 376 and 506-II of the IPC and Section 6 of the POCSO 4 Act read over and explained to the accused, who abjured his guilt. 6. In order to bring home the offence, the prosecution examined as many as 09 witnesses and exhibited 24 documents in support of case of the prosecution. The appellant has neither examined any witness in his defence nor exhibited any document. 7. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely implicated. The defence has neither examined any witness nor has exhibited any document. 8. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in paragraph 02 of this judgment. Hence this appeal. 9. Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the present case. The prosecution has completely failed to prove the guilt of the appellant. He further submits that there are so many contradiction and omission in the statement of the prosecution witnesses. The prosecution has completely failed to prove the age of the victim that on the date of the incident, the victim was minor. He further submitted that learned trial Court erred in reading MLC report and statement of Dr. Sangeeta Kalar (PW-6) and has also failed to consider that there is nothing in medical report to show that forcible sexual intercourse was committed upon the victim. Furthermore, Dr. Deepak Prakash (PW-7), who has been got examined to prove the age of the 5 victim through radiological report, is not a radiologist, and therefore, he can not be said to be a competent person to prove the age of the victim through radiological report and as such the prosecution has failed to prove that the victim was a minor on the date of incident. The learned trial Court had not considered the whole evidence in its totality and only appreciated the evidence of victim (PW-1). 10. It is further submitted by the learned counsel for the appellant that as per the victim (PW-1), she went out of her house to response the call of nature on the date of incident at about 01:00 a.m. in night whereas the father of the victim (PW-3), in paragraph 13 of his cross examination, has made statement to the effect that the house was got constructed in the year 2014 and there is toilet and bathroom inside the house and furthermore it has also been stated that the courtyard, which is used for responding call of nature, is surrounded and there is one bamboo gate in the courtyard. He also submits that looking to the admission made by the father of the victim (PW-3) in paragraph 13 of his cross examination, it appears to be improbable that the victim (PW-1) would go outside of her house to response the call of nature in night despite availability of toilet and bathroom inside the house and even otherwise it is not possible for the accused to take the victim forcefully to shrub (Mahuwa Jhad) from the surrounded courtyard having one bamboo gate. Furthermore, the accused cannot be supposed to have knowledge of the fact that the victim would come outside of her house in night about 01:00 a.m. without any source for getting such information, and therefore, the story developed by the defence side, appears to be a probable one that it was the victim who had love affair with the appellant and she had called the appellant. In fact, the 6 victim herself has accompanied the appellant, therefore, the conviction of the appellant is not sustainable and the appellant should be acquitted of the charges framed against him. 11. On the other hand, learned State Counsel opposed the submissions of learned counsel for the appellant and submitted that the offences committed by the appellant were heinous in nature and thus, the trial Court had rightly convicted him. He submitted that the trial Court had considered all the arguments made by the appellant and there was sufÏcient evidence to prove his guilt beyond a reasonable doubt. Moreover, the victim was minor and below 18 years of age at the time of incident which is proved by the Dakhil-khalij register (Ex.P/5C) which contains the date of birth of the victim as 22.03.2005. The evidence of the victim need not be required for any corroboration and on the sole testimony of the victim the conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial Court and the impugned judgment of conviction and order of sentence needs no interference. 12. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 13. The first and foremost question arose for the consideration would be whether the victim was minor and less than 18 years of age on the date of incident or not ? 14. In order to consider the age of the victim, we have examined the evidence available on record. The prosecution has mainly relied upon the entry in Dakhil-kharij Register, which was seized vide Ex.P/4, statements 7 of the victim (PW-1), father of the victim (PW-3) and Shrikant Shukla (PW-2) Principal of SPS Memorial School, village Baihamunda, Thana Gharghora, District Raigarh (C.G.). According to the Dakhil-kharij Register (Ex.P/5C), the date of birth of the victim is 22.03.2005. 15. The victim (PW-1) has deposed in her statement that her date of birth is 22.03.2005. In cross-examination, she has not stated anything regarding her date of birth. Likewise, father of victim (PW-3) in his statement has stated that the date of birth of the victim is 22.03.2005, but in his cross-examination, he has stated that when the victim was enrolled in school, he did not provide birth certificate of the victim or any other document related to her birth. 16. Shrikant Shukla (PW-2), who is Principal of SPS Memorial School, village Baihamunda, Thana Gharghora, District Raigarh (C.G.) has clearly deposed in his deposition that in the Dhakhil Kharij Register information with regard to victim has been noted in Sl.No. 380 and she was admitted in Class-V on 19.04.2016. He has also stated that as per this Register, the date of birth of victim is 22.03.2005. This witness has also submitted that all the information in Dakhil Kharij Register with regard to the victim was made by the the former Principal Smt. V. Shobha. Although, he has admitted that in support of alleged date of birth of victim, no any document was filed. 17. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident 8 she was minor and below 18 years of age. Only on the basis of school Dakhil-kharij register, it would not be safe to hold that the victim was minor on the date of incident. The statement of the prosecution witnesses are contradictory to each other with regard to the age of the victim and does not inspire confidence upon this Court to hold that the date of birth of the victim is 22.03.2005. 18. 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 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 ofÏcial 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 ofÏcial 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." 19. 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, 2011(2) SCC 385, has observed as under: 9 “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, 10 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 11 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 12 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.” 20. 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 13 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 sufÏcient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to 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. 14 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 ofÏcial document maintained in the discharge of ofÏcial 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 15 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.” 21. 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, 16 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 OfÏcial (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 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 17 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 18 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.” 22. Reverting to the facts of the present case, the victim (PW-1) has stated in her deposition that her date of birth is 22.03.2005. Her father (PW-3) has deposed in his statement that the date of birth of the victim is 22.03.2005, but in his cross-examination, he has stated that when the victim was enrolled in school, he did not provide birth certificate of the victim or any other document related to her birth. Shrikant Shukla (PW-2) though has admitted that in the Dakhil-kharij Register (Ex.P/5C), date of birth of the victim has been mentioned as 22.03.2005, but in his cross- examination, he has stated that on what basis the date of birth of the victim was recorded in the school, he did not know. 23. Except for these evidences, no other evidence like Kotwari register or birth certificate have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses i.e. victim herself (PW-1), 19 father of the victim (PW-3) and Shrikant Shukla (PW-2) and also Dakhil- kharij Register (Ex.P/5C) are not sufÏcient to hold that the victim was minor on the date of incident because of the reason that no documents has been shown to ascertain the fact that on what basis the date of birth of the victim was recorded. The entry with regard to age of the victim has been mentioned in the Dakhil-kharij Register (Ex.P/5C) is not sufÏcient to hold actual date of birth of the victim. There is every possibility that the date of birth of the victim is recorded on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the victim are not of that sterling quality which is sufÏcient to determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 24. The next question for consideration would be whether the appellant has committed rape upon her or not ? 25. Victim (PW-1) has deposed in her statement that on 19.04.2019, she was at her home with her older sister and father. Her mother and brother had gone to Dharamjaygarh to attend a wedding. Around 1:00 a.m., she went out of her house to urinate in the courtyard, at that relevant time the accused, Rajeshwar Lodha, entered into her courtyard and caught her from behind. He took her to a Mahua tree located a short distance from her house. The accused forcibly removed her clothes and underwear and committed forceful intercourse with the victim. He threatened her, by saying that if she narrated the fact to anyone about the 20 incident, he would kill her. When she did not return home after going out to urinate, her father went to her aunt's house for searching her. As such, her aunt came to her house. When she returned home after the incident, her aunt was at her house. She told her aunt and father about the incident. Thereafter, on the next day, she came to the Gharghora Police Station with her parents. Father of the victim told the Police about the incident. After that, the Police sent her to Raigarh for medical examination. In Raigarh, Doctor examined the victim. She also gave a statement before the Child Welfare Committee at Raigarh, which is Ex.P/1, she also gave a statement in the Court of Magistrate in Gharghora, which is Ex.P/2. During cross-examination, the victim denied the suggestion of the defence that she and the accused had no physical relationship. She acknowledged that they never had a romantic relationship. She admitted that she did not resist due to fear. However, in the medical examination conducted by Dr. Sangeeta Kalar (PW-6) no injuries were found on her body. Even the father (PW-3) or any other witness have not stated anything that she had sustained any injuries which goes to suggest that such statements were an afterthought. Even the MLC report were found to be negative. Dr. Kalar (PW-6) has also stated that no definite opinion could be given with regard to any forceful sexual intercourse. 26. Father of the victim (PW-3) has deposed in his evidence that the incident occurred on 19.04.2019. On the night of the incident, around 1:30 a.m., when he woke up to urinate, he found that back door of the house was opened, thereafter, he went to the room where his two daughters were sleeping and found that the older daughter was asleep, but the victim was not there. He then called out to the victim near the house 21 boundary and, after enquiring around, returned home where he find that the victim was sitting on her bed and crying. When he asked her what happened, the victim told him that around 1:00 a.m., she had gone to the back of the house to urinate where the accused caught hold of her from behind, covered her mouth, and took her to a Mahua tree, where he removed her clothes and had forcible intercourse with her. The accused threatened her to kill if she told the incident to anyone. The next day, April 20, 2019, he lodged a written report at Gharghora Police Station, which is Ex.P/6. Based on this report, a FIR (Ex.P/7) was registered. Thereafter, the Police obtained the consent of victim for medical examination, which is Ex.P/8. During cross-examination, he stated that he admitted her daughter, the victim, to Saraswati Sishu Mandir in Chhote Gumda in Class-I. At the time of admission, he did not provide her birth certificate to the school. The birth date of the victim based on her school certificate, which mentions the same date as her actual birth date. He also mentioned that he had written down the birth dates of all three children in a diary. But, he did not hand over this diary to the Police. He further states that he built the house way back in the year 2014 and there is a toilet and bathroom inside the house. However, we mostly go outside to urinate. It is incorrect to say that we use the toilet inside the house at night. We usually go outside. The area where we go to urinate is covered on all sides. There is a door in this enclosure, which is made of weak bamboo. It is true that we locked the back door of the house at night before sleeping. On the night of the incident, he had locked the door and gone to sleep. 27. Dr. Sangeeta Kalar (PW-6): She is the doctor who had examined the victim. On 20.04.2019, at 2.30 p.m., Lady Constable, Babita Kujur 22 (No. 265), from Gharghora Police Station, brought a 14 year old victim from Chhote Gumda, Gharghoda, Raigarh, for a genital examination. The victim had a distinctive black mole on the first finger of her left hand. Upon general examination, she found her to be of average height and build, fully conscious, and alert. The victim had 14 teeth in both her upper and lower jaws. There were no visible external injuries on her body, and she did not complain of any pain. Secondary sexual characteristics: Both breasts were fully developed. Pubic hair was present in minimal quantity on her genital area and armpits. Her last menstrual period was on 08.04.2019. Internal examination: She complained of pain during the two-finger test. The hymen was already torn. The cervix was closed. White discharge was present. There was no inflammation. She prepared two slides of vaginal discharge for chemical examination and handed them over to the Lady Constable, along with a sealed, brown-colored panty. She also recommended that the victim be sent to a radiologist for age determination. In the cross-examination, she stated that no definite opinion could be given with regard to any forceful sexual intercourse. 28. Dr. Deepak Prakash (PW-7), has stated in his deposition that on 20.04.2019, he received a letter (Ex.P/14) from Gharghora Police Station, requesting to determine the age of the victim “A”. The letter suggested a radiology test at KGH, Raigarh. Thereafter, he prepared a letter (Ex.P/15) for the X-ray examination of the victim, which included AP views of the wrist joint, elbow joint, pelvic bones, and lateral views of the shoulder joint and head. The X-ray was conducted at KGH Hospital, Raigarh, with plate number 8214. On 29.04.2019, at about 3:30 p.m., the victim, her mother, and the X-ray plate were presented before him by Lady Constable, Babita 23 (No. 265) from Gharghora Police Station. He explained the age determination process to the victim and her mother and obtained their consent, along with their thumb impressions. Thereafter, the victim underwent a physical examination. Her height was 151.5 cm, weight was 41.1 kg, chest circumference was 76 cm, and abdominal circumference was 65 cm. The victim had 14 teeth in both her upper and lower jaws, indicating an age of more than 12 years. She also had hair on her head, axillary hair, pubic hair, and breast development consistent with her age. Radiological examination revealed: 1. Pelvis: Iliac crest not fused. 2. Skull: Two molars present in upper and lower quadrants. 3. Wrist: Lower end of radius and ulna not fused; proximal part of metacarpals ossified but not fused completely (less than 15 years). 4. Elbow joint: Lower end of humerus ossified but not fused completely (less than 16 years). Based on the physical, dental, and radiological examinations, the report concluded that the age of the victim is between 12 and 15 years, and more specifically, above 12 years but less than 15 years. In his cross- examination, he admitted that he is not a Dental surgeon or radiologist. He himself stated that he is MD in Forensic Medicine, and during his studies, he learnt about dental and radiological aspects related to age determination. It is true that age determination is approximate and not definitive. 29. After considering the entire facts and circumstances of the case and 24 evidence available on record, the victim is stated to be minor at the time of incident. However, fact of the matter remains that the admission/discharge register presented before the learned trial Court was with regard to Class-V in which the victim had taken admission. Even the basis of entry of date of birth as 22.03.2005 has not been proved. Further, Dr. Deepak Prakash (PW-7), who has been got examined to prove the age of the victim through radiological report, but in his cross-examination, he himself admitted that he is not a radiologist, and therefore, we are of the opinion that he cannot be said to be a competent person to prove the age of the victim through radiological report and as such the prosecution has failed to prove that the victim was a minor on the date of incident. 30. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under: “94. Presumption and determination of age.— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the 25 process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 31. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has committed rape upon her, as looking to the admission made by the father of the victim (PW-3) in paragraph 13 of his cross examination, it appears to be unconvincing that the victim (PW-1) would go outside of her house to response the call of nature in night despite availability of toilet and bathroom inside the house and even otherwise it is not possible for the accused to take the victim forcefully to Mahuwa tree from the surrounded courtyard having one bamboo gate. Furthermore, the accused cannot be supposed to have knowledge of the fact that the victim 26 would come outside of her house in night about 01:00 a.m. without any source for getting such information, and therefore, it appears that it was the victim who had called the appellant on the date of incident. Had she been forcefully raped against her will or consent, she would definitely raise alarm as the house of the victim so close from the place of incident. Since, it is held that the victim is not below the 18 years of age, she is capable to give her consent, and therefore, it cannot be said that the appellant procured a minor girl with the intention to illicit intercourse or committed rape upon her. 32. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do so in the instant case. 33. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt. 34. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 06.08.2021 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith, if not required in any other case. 27 35. Keeping in view the provisions of Section 437-A of the CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one 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 the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan