1 2025:CGHC:19888-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 914 of 2021 Rajesh Yadav S/o Shri Jageshwar Yadav Aged About 34 Years R/o Village Hastinapur, P. S. Narayanpur, District Jashpur, Chhattisgarh. ... Appellant(s) versus State of Chhattisgarh Through Station House OfÏcer, Police Station Narayanpur, District Jashpur, Chhattisgarh. ...Respondent(s) For Appellant : Mr. Rajesh Jain, Advocate. For Respondent/State : Mr. Hariom Rai, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board Per Ramesh Sinha, Chief Justice . 01.05.2025 1. Heard Mr. Rajesh Jain, learned counsel for the appellant. Also heard Mr. Hariom Rai, learned Panel Lawyer, appearing for the respondent/State. 2. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 15.06.2021, passed by the learned Special Judge (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989), Jashpur, District BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.05.02 11:36:24 +0530 2 Jashpur (C.G.) in Special Criminal Case under SC/ST Act No. 09 of 2020, whereby the appellant has been convicted and sentenced as under: Conviction Sentence Section 341 of the Indian Penal Code (for short, ‘IPC’) Simple imprisonment (for short, ‘S.I.’) for 01 month and fine of Rs. 500/-, in default of payment of fine, 01 week S.I. more. Section 376(1) of the IPC with Section 3(2)(v) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. (for short, ‘Act of 1989’) Life imprisonment with fine amount of Rs. 1000/-, in default of payment of fine, 03 months R.I. more. All the sentences were directed to run concurrently. 3. Brief facts of the case are that, the victim was 17 years old. The incident took place on 15.02.2020 at 6.00 p.m. when she went to a mobile shop in her village on a bicycle to recharge her mobile phone. The victim was returning from the shop when on the way, the accused Rajesh Yadav met her near Shyam Bhagat's barn and stopped her and asked her to take him to Mahendra's house. The victim said that she would not be able to take him anywhere and started running away on the bicycle. The accused ran from behind the bicycle and sat in the carrier of the bicycle. The victim went some distance when the accused caught hold of her right hand and stopped the bicycle. When the victim got off the bicycle, the accused caught hold of her and started pulling her, so she sat on the roadside. The accused picked up the victim with both hands and took her to Shyam Bhagat's barn Para 3 Mancha. When the victim started shouting, the accused pressed her mouth and said that if she makes a noise, he will get her killed right there. The accused forcefully threw the victim in the para and after removing her clothes raped her and pressed her chest forcefully and bit both her cheeks. The victim kicked the accused in self-defense. Thereafter, the accused said that if she does not meet him again at 7.00 p.m. on Tuesday, he will hit her with his car while going to school and will get her killed and then left from there. The victim came home crying from the place of incident and told her mother about the incident. The victim’s mother told her husband about the incident. As it was night, they did not go to report that day and on the next day dated 16.02.2020, the victim gave a written report about the incident in Narayanpur Police Station on which the police registered the crime and wrote the First Information Report (FIR) vide (Ex.P/10). Earlier also, when the victim had gone for a picnic, the accused had said that he would buy a mobile for the victim, but the victim did not talk to him. Along with the written report, the victim gave her mark-sheet of high school certificate examination and caste certificate regarding her belonging to Scheduled Tribe. The police got the victim examined by a lady Doctor at Community Health Center Kunkuri after taking consent from her and her parents and permission from Sub-Divisional Magistrate Kunkuri for private part examination. The vaginal slide preserved by the Doctor after examination of the victim and the underwear of the accused were confiscated after being given in a sealed packet. The police prepared a map of the crime scene. The kurti, dupatta, leggings worn by the victim at the time of the incident and the bicycle of the victim were confiscated. The kurti was torn at the time of the incident. The bicycle was given to the father of the victim by the police under a custody bond. The police got the accused examined by a Doctor at Community Health Center 4 Kunkuri. The underwear of the accused given by the Doctor after examination of the accused. The accused was arrested. Statement of the victim was recorded in the Court of Chief Judicial Magistrate Jashpur under Section 164 of the Cr.P.C. Patwari was asked to prepare a site map of the incident. Chemical tests were conducted on the victim’s seized underwear and vaginal swab and the accused's underwear in which semen stains and human sperm were found. 4. When the accused was charged under Sections 341, 376(1), 324 IPC and Section 4 Protection of Children Act and Section 3(2) (v) of the Act, the accused denied having committed the crime. In the trial under Section 313 of the Code of Criminal Procedure, the accused said that he was innocent and had been falsely implicated. 5. 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 Special Judge (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989), Jashpur, District Jashpur (C.G.) for the commission of offence punishable under Sections 341, 376(1) and 324 of the IPC, Section 4 of the POCSO Act and Section 3(2)(v) of the Act of 1989. 6. Learned trial Court framed charges for the offences punishable under Sections 341, 376(1) and 324 of the IPC, Section 4 of the POCSO Act and Section 3(2)(v) of the Act of 1989 read over and explained to the accused, who abjured his guilt. 7. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 33 documents in support of case of the prosecution. The appellant has neither examined any witness in his defence 5 nor exhibited any document. 8. 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. 9. 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. 10. 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 Tirkey (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. The learned trial Court had not considered the whole evidence in its totality and only appreciated the evidence of victim (PW-2). 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 6 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/14C) which contains the date of birth of the victim was 19.09.2002. 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 (Ex.P/14C), statement of the victim (PW-1) and Salma Khatun (PW-4) Teacher at Government Primary School, Hastinapur, Tahsil Kunkuri, District Jashpur (C.G.). According to the Dakhil- kharij Register (Ex.P/14C), the date of birth of the victim is 19.09.2002. 15. The victim (PW-2) has deposed in her statement that her date of birth is 19.09.2002. In her cross-examination, she has not stated anything regarding her date of birth. Father of the victim (PW-1) in his statement has stated that he is illiterate and cannot tell the age of the victim. In his cross- examination, he has stated that when the victim was enrolled in school, he 7 did not provide birth certificate of the victim or any other document related to her birth. 16. Salma Khatun (PW-4), who is Teacher at at Government Primary School, Hastinapur, Tahsil Kunkuri, District Jashpur (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. 411 and she was admitted in Class-1 on 16.06.2008. She has also stated that as per this Register, the date of birth of victim is 19.09.2002. This witness has also submitted that all the information in Dakhil Kharij Register with regard to the victim did not take place during her tenure, therefore, she could not tell who admitted the victim. She further stated that she could not tell on what basis the victim’s date of birth was recorded. 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 she was minor and below 18 years of age. Only on the basis of school Dakhil- kharij register (Ex.P/14C), 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 19.09.2002. 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 :- 8 “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: “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 Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no 10 probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the 11 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.” 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- 12 section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be 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 13 the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7. This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a 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 14 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 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, 15 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 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, 16 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 17 was given precedence and it was only in the event of the certificate not being available that the date of birth certificate fromthe school first attended, could be obtained. In Section 94(2) (i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 22. Reverting to the facts of the present case, the victim (PW-2) has stated in her deposition that her date of birth is 19.09.2002. Her Father (PW- 1) in his statement has stated that he is illiterate and cannot tell the age of the victim. 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. Salma Khatun (PW-4) though has admitted that in the Dakhil-kharij Register (Ex.P/14C), date of birth of the victim has been mentioned as 19.09.2002, but in his cross-examination, she has stated that on what basis the date of birth of the victim was recorded in the school, she 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-2), father of the victim 18 (PW-1) and Salma Khatun (PW-4) and also Dakhil-kharij Register (Ex.P/14C) 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/14C) 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-2) has deposed in her statement that her age was 17 years and her date of birth is 19.09.2002. On 15.02.2020 at 6.00 p.m. in village Hastinapur she went to Rajendra's shop to recharge her mobile phone. When she was returning home after recharging her mobile phone, she met the accused Rajesh Yadav near Shyam's barn. At that time she was coming on her cycle and the accused sat on her cycle. She told the accused that she would not be able to ride the cycle. The accused was pulling her by holding her left hand, so she sat on the road. The accused picked her up and took her to Shyam's barn and threw her in the straw. The accused removed the lower clothes of the victim and raped her. When she was screaming, the 19 accused said that if she scream, he will killed her right here. The accused had said that if she does not come here on Tuesday, if she goes to school in village Basentala to study, he will get her run over by his bike and get her killed. Thereafter, she went to her house wearing her clothes and crying. And told her mother about the incident. Thereafter, she had given a written report regarding the incident in Narayanpur police station vide Ex.P/7. She had also given her mark-sheet vide Ex.P/8 and caste certificate vide Ex.P/9 to the Police Station. The police had written the FIR (Ex.P/10) and the Police had got her medical examination done for which she had given consent vide Ex.P/11. She had given her underwear, leggings, dupatta to the police which were seized by the police. The Patwari had made a map of the place of incident vide Ex.P/4 and Panchnama vide Ex.P/5. The accused had bitten her cheeks. She had given a statement to the police. She had also given a statement in the Court of Jashpur under Section 164 of the Cr.P.C. However, in the medical examination conducted by Dr. Sangeeta Tirkey (PW-6) no injuries were found on her body. Even the father (PW-1) 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. Tirkey (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-1) has deposed in his evidence that he is illiterate, therefore, he cannot tell that what is the age of the victim. He said that his age was about 45-46 years. He accepted that one and a half years after his marriage his first son was born and one and a half years after his birth his second son was born and one and a half years after that the victim was born. He accepted that he cannot tell the date of birth of his three 20 children. He accepted that earlier in the village children were admitted to school when they were older. He accepted that when the victim was admitted to school she was 8-9 years old. Thus, it is clear from his statement that he is illiterate and hence, cannot tell the date of birth of the children and he does not even know what was the age of the victim at the time of enrolling her in school. According to the father of the victim, about 11 months ago, his wife had told him that she had sent the victim to get her mobile recharged. According to him, his wife had told that when the victim was returning home after getting her mobile recharged, the accused Rajesh Yadav followed her near the shop and caught her on the way and took her to Shyam's barn, gagged her mouth and removed her underwear and cut her cheek. According to him, his wife did not tell about what the accused did to the victim. On being declared hostile, he has denied that his wife had told him that the accused Rajesh Yadav had done wrong to the victim. In this manner, it is denied that the wife came to know about the wrongdoing, but the fact that the accused chased the victim, caught her on the way, took her to the barn, removed her underpants and cut her cheeks is said to be known to him from his wife. 27. Mother of the victim (PW-3), has stated that the victim had gone to the shop to get her mobile recharged. According to this, the victim had had stated that when she was coming back from the shop, the accused Rajesh sat on her cycle. The victim further stated to her mother that the accused had stopped the cycle and caught hold of her and taken her towards Puwal. The victim had stated that the accused had bitten her cheek and was strangulating her and had gagged her when she raised an alarm. Thereafter, the accused had unzipped her clothes and removed her underwear and climbed upon her and insulted her. According to this, the victim had stated 21 that she had come home wearing clothes and crying. On being declared hostile, she has accepted that the victim had stated that the accused had taken her to Shyam Bhagat's barn and raped her. In this manner it is said that the victim came home crying and the incident was narrated by the victim. 28. Dr. Sangeeta Tirkey (PW-6): She is the doctor who had examined the victim. On 16.02.2020 at about 8.30 p.m., Lady Constable, Geeta Yadav, Sl.No. 767 from Narayanpur Police Station brought the victim, daughter of Sikandar Ram Bhagat, age-17 years, resident of village Hastinapur, police station Narayanpur, District Jashpur, for examination. She had a black mole on her right shoulder as an identification mark. On examination, her height was 4 feet 8 inches, weight 42 kg. Her secondary sexual characteristics were fully developed. There were no marks of external injury on her body. She told that she had her last menstruation on 28.01.2020. Her secondary sexual organs were fully developed. There was no injury in her genital area, inner part of thighs and between the stomach and thigh. On internal examination, her labia minora, labia majora were normal. Her hymen was torn. There was a light white discharge in her vagina. She prepared two vaginal smear slides by taking the discharge from her vagina, sealed them and gave them to the same Constable for chemical examination. In her opinion, sexual intercourse has taken place with her, but she have not given any definite opinion regarding rape. A faded blue underwear was brought, which was sealed and given for chemical examination. 29. Reverting to 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 22 the victim (PW-2) in his cross examination, that it is correct to say that there is a ditch in the drain adjacent to the road where there is mud and adjacent to it is Shyam's barn. She had parked her cycle on the side of the road at the stand. The victim herself said that she had parked the cycle when the accused started pulling her by holding her hand. She further stated that people come and go to Jashpur from this road and it is a busy road and the Shyam Bhagat's barn is an open space. The victim herself said that the houses there are at a little distance and if someone shouts from the place where the accused has said to take her near para, then the people passing by on the road will hear. The victim herself said that if someone shouts from Shyam Bhagat's barn, then if there are people standing in front of the nearby houses, they will hear. Furthermore, if she had been forcefully raped against her will or consent, she would definitely raise alarm as there are so many houses 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. 30. 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. 31. For the foregoing discussions, this Court is of the opinion that the 23 prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt. 32. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 15.06.2021 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. 33. 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. 34. 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/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Brijmohan