1 2025:CGHC:35374-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1263 of 2024 Bhuneshwar Yadav S/o. Urdo Ram Aged About 22 Years R/o. Jadapadar, P.S. Mainpur, District- Gariyaband (CG) ... Appellant(s) versus State of Chhattisgarh Through- Police Station- Mainpur, District- Gariyaband (CG) ...Respondent(s) For Appellant : Mr. Shishir Dixit, Advocate. For Respondent/State : Mr. Nitansh Jaiswal, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, Chief Justice . 23.07.2025 1. Heard Mr. Shishir Dixit, learned counsel for the appellant. Also heard Mr. Nitansh Jaiswal, 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 BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.07.28 17:29:08 +0530 2 sentence dated 07.12.2023, passed by the learned Additional Sessions Judge, Fast Track, Special Court (POCSO and Rape Cases), Gariyaband (C.G.) in POCSO Case No. 43 of 2021, whereby the appellant has been convicted and sentenced as under: Conviction Sentence Section 450 of the Indian Penal Code (for short, ‘IPC’) Rigorous imprisonment (for short, ‘R.I.’) for 10 years and fine of Rs.2,000/-, in default of payment of fine, 01 month R.I. more. Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) R.I. for 20 years fine of Rs. 5000/-, in default of payment of fine, 01 month R.I. more. All the sentences were directed to run concurrently. 3. The prosecution’s case, in brief, is that the victim’s mother (PW-5) lodged a written complaint (Ex.P/8A) at Police Station Pandri, Raipur, stating that she resides in village Jaitpuri, Police Station Gariyaband, and her 16-year-old daughter (the victim) had been living with her maternal grandparents since childhood and was studying there. In May 2020, the victim (PW-1) came to her mother’s house and was staying with her. On 07.07.2020, the victim developed a fever and was taken to the Government Hospital in Gariyaband, where it was discovered that she was bleeding from her private parts. The hospital staff advised them to take the victim to the District Hospital in Raipur, where she was admitted. The Doctors informed them that the victim’s life was in danger and that an 3 abortion had to be performed. On 10.07.2020, the victim told her mother that about two and a half months prior, when she was at her grandparents' house in Mainpur, Bhuneshwar Yadav, a resident of Jadapadar, had forcibly raped her two to three times at night, resulting in her pregnancy. Based on the written complaint (Ex.P/8A), FIR No. 0/2020 (Ex.P/9) was registered against the appellant for the offences punishable under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act at Police Station Pandari, Raipur, on 10.07.2020. Since the case fell under the jurisdiction of Mainpur Police Station, the case was transferred, and an FIR bearing Crime No. 51/2020 (Ex.P/36) was registered at Police Station Mainpur on 14.07.2020, under the same Sections, and the investigation commenced. 4. On 10.07.2020, consent (Ex.P/1) was obtained from the victim and her mother for the medical examination of the victim, and a requisition was sent to the District Hospital, Raipur. The victim's physical and genital examination was conducted, and the report was obtained. A request was also made to the Medical Officer-in-Charge, District Hospital, Raipur, to record the victim's statement. On 16.07.2020, a requisition was sent to the Civil Surgeon, District Hospital, Gariyaband, for the victim’s genital examination, and the report was received after the examination. Notices under Section 91 of the CrPC (Ex.P/2) were served on the victim and her mother. The victim’s Class V progress card and caste certificate, which contained her date of birth, were seized in the presence of witnesses. Thereafter, on 17.07.2020, a request was made to the Judicial Magistrate First Class, Rajim, to record the victim's statement under Section 164 of the CrPC, which was duly recorded. On 22.07.2020, a spot map of the 4 incident was prepared in the presence of witnesses. On 25.07.2020, the victim was counselled by the Child Welfare Committee, Gariyaband, following a request made to them. On 24.11.2020, a request was sent to the Tehsildar, Mainpur, to provide a Patwari map of the incident site, and a site map was prepared accordingly. 5. On 01.12.2020, the appellant was arrested vide Ex.P/19 in the presence of witnesses, and his family was informed about the arrest vide Ex.P/20. The appellant underwent a physical and private part examination, and the report was received vide Ex.P/32. On 12.01.2021, a request was made to the Superintendent of the Central Jail, Raipur, to collect the appellant's blood sample for a DNA test and present it to the District Hospital, Raipur. On the same date, a request was also made to the Chief Medical Officer of District Hospital, Pandri, Raipur, to collect blood samples from both the victim and the appellant for DNA testing and to appoint a Medical Officer for this purpose. The father of the victim provided consent for the DNA test, and the appellant also gave consent for his blood sample to be taken for the DNA test. Thereafter, on 14.01.2021, the appellant presented his blood sample, which was collected from the District Hospital, Pandri, Raipur, in a sealed condition, in the presence of witnesses, for the DNA test. Similarly, the victim's blood sample was also collected and seized in a sealed condition in the presence of witnesses for the DNA test. On 17.02.2021, a request was made to the Principal of Saraswati Shishu Mandir School, Mainpur 6. Statements under Section 161 of the Cr.P.C. of the witnesses were recorded by the Police. After completing the entire investigation, charge- 5 sheet was filed before the learned Additional Sessions Judge, Fast Track, Special Court (POCSO and Rape Cases), Gariyaband (C.G.) against the appellant for the commission of offences punishable under Sections 376(2)(n) and 450 of the IPC, Section 6 of the POCSO Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘Act of 1989’). 7. Learned trial Court framed charges for the offences punishable under Sections 376(2)(n) and 450 of the IPC, Section 6 of the POCSO Act and Section 3(2)(v) of the Act of 1989 read over and explained to the appellant, who abjured his guilt. 8. In order to bring home the offences, the prosecution examined as many as 13 witnesses and exhibited 38 documents in support of case of the prosecution. The appellant has neither examined any witness in his defence nor exhibited any document. 9. Statement of appellant 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. 10. 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. 11. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case, and the prosecution has failed to prove his guilt beyond reasonable doubt. The case of the prosecution is 6 riddled with several contradictions and omissions in the statements of the prosecution witnesses, which cast serious doubt on the veracity of the prosecution’s version. The learned trial Court has erred in convicting the appellant under the provisions of the POCSO Act, as the prosecution has failed to establish the age of the victim beyond reasonable doubt, a critical element to attract the applicability of the said Act. He further submits that the only documentary evidence regarding the victim’s age is the Admission-Discharge Register (Article 1C). However, the reliability of this document is questionable. As per the testimony of Khilawan Patel (PW-3), the concerned school authority, the entry regarding the victim’s date of birth was made solely on the basis of information provided by the victim’s maternal uncle (mama), who brought a slip of paper containing the date. There is no supporting documentary evidence such as a birth certificate or contemporaneous medical record to corroborate the age mentioned. Furthermore, the victim herself, in her cross-examination, admitted that she knows her date of birth only from school records. Similarly, the victim’s father (PW-4) also stated that he knows his daughter’s date of birth based on school records, without any independent proof. Significantly, the Doctor who examined the victim has clearly stated that no medical examination for age determination was conducted. In light of the above, the prosecution has utterly failed to establish the age of the victim beyond reasonable doubt, which is essential for the conviction under the POCSO Act. Therefore, the conviction recorded by the learned trial Court is legally unsustainable and deserves to be set aside. 12. It is further submitted by the learned counsel for the appellant that the victim has categorically stated in both her examination-in-chief and 7 cross-examination that she was in a love relationship with the appellant and had willingly participated in the alleged acts. In light of the prosecution’s failure to establish the age of the victim beyond reasonable doubt, and considering that the victim was a consenting party, the conviction of the appellant is unsustainable in law. Accordingly, it is submitted that the appellant is entitled to be acquitted of the charges framed against him. 13. On the other hand, the learned State counsel has opposed the submissions advanced by the learned counsel for the appellant. He submitted that the offences committed by the appellant are of a heinous nature, and the learned trial Court has rightly convicted him after appreciating the evidence on record. It is further submitted that the learned trial Court had duly considered all the arguments put forth by the appellant, and there exists sufficient evidence to establish his guilt beyond reasonable doubt. The learned State counsel also contended that the testimony of the victim, being trustworthy and reliable, does not require corroboration, and a conviction can be sustained solely on the basis of her evidence. Therefore, no illegality or infirmity is found in the judgment of conviction and order of sentence passed by the learned trial Court, and the same does not warrant any interference. 14. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 15. 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 ? 8 16. To determine the age of the victim, we have examined the evidence available on record. The prosecution has primarily relied on the entry in the Admission-Discharge Register (Article 1C), the statement of the victim (PW-1), the DNA report (C/1) of the fetus, and the testimony of Premnath Sonwami (PW-2), who is a Teacher at Saraswati Shishu Mandir School, Mainpur, Thana Mainpur, District Gariyaband (C.G.). According to the Admission-Discharge Register (Article 1C), the victim’s date of birth is 03.05.2004. 17. The victim (PW-1) testified in her statement that her date of birth is 03.05.2004. However, during her cross-examination, she stated that she knows her date of birth based on school records. Similarly, the victim’s father (PW-4) stated in his testimony that the victim’s date of birth is 03.05.2004, but during his cross-examination, he stated that he knows his daughter’s date of birth based on school records. 18. Premnath Sonwani (PW-2), a teacher at Saraswati Shishu Mandir School, Mainpur, Thana Mainpur, District Gariyaband (C.G.), has clearly testified in his deposition that the information regarding the victim was recorded at Sl. No. 12 and Admission No. 403, in the Admission- Discharge Register (Article 1C), and she was admitted to Class 1 on 01.07.2010. He also stated that, according to this register, the victim’s date of birth is 03.05.2004. This witness further stated that all the information in the Admission-Discharge Register regarding the victim was entered by the former teacher, Khilawan Patel (PW-3). 19. Khilawan Patel (PW-3), a former teacher at Saraswati Shishu Mandir School, Mainpur, Thana Mainpur, District Gariyaband (C.G.), 9 testified in his deposition that on 01.07.2010, he admitted the victim to Saraswati Shishu Mandir Mainpur based on the instructions of the victim’s maternal uncle, Ajay Kumar Dhruv. He recorded the victim’s entire details in the Admission Register (Article-1) at Sl.No. 12 and Admission No. 403, as per the information provided by Ajay Kumar Dhruv. However, Ajay Kumar Dhruv is no longer alive, having passed away due to COVID-19. He further stated that he did not sign the admission register regarding the victim’s details; instead, the then Principal, Bhaiya Lal Nagesh, signed in column 12. Notably, he admitted that no document was filed in support of the alleged date of birth of the victim. 20. 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 Admission-Discharge Register (Article 1C), 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 03.05.2004. 21. 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 10 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 22. 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. 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 11 entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can 12 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 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 13 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.” 23. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:- “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima 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 14 Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7. This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a 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 15 the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 24. 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 16 certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in 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 17 evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were 18 contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate fromthe school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 25. Reverting to the facts of the present case, it is pertinent to note that the victim (PW-1) has testified that her date of birth is 03.05.2004. Her father (PW-4) has corroborated this testimony, stating that the victim’s date of birth is indeed 03.05.2004. However, during their cross- examination, both the victim and her father revealed that their knowledge of the date of birth is based solely on school records. Furthermore, Khilawan Patel (PW-3), the former teacher responsible for admitting the victim to Saraswati Shishu Mandir Mainpur on 01.07.2010, testified that he admitted the victim to Class 1 and entered the victim’s date of birth in the Admission-Discharge Register (Article 1C) based on the instructions of the victim’s maternal uncle, Ajay Kumar Dhruv. Notably, during his cross-examination, Khilawan Patel (PW-3) admitted that no documentary 19 evidence was provided to support the alleged date of birth of the victim, which raises significant doubts about the reliability of the evidence presented to establish the victim’s age. 26. Except for the aforementioned evidence, no other documents such as the Kotwari register or a birth certificate have been produced by the prosecution to establish that the victim was a minor (under 18 years of age) on the date of the incident. The oral testimony of the witnesses, namely the victim herself (PW-1), the victim's father (PW-4), mother (PW- 5), Premnath Sonwani (PW-2), and Khilawan Patel (PW-3), along with the Admission-Discharge Register (Article 1C), is not sufficient to conclusively prove that the victim was a minor on the date of the incident. This is because no supporting documents have been provided to show the basis on which the victim’s date of birth was recorded. The entry regarding the victim's age in the Admission-Discharge Register (Article 1C) alone is insufficient to establish her actual date of birth. There is a strong possibility that the recorded date of birth was based on assumptions. If otherwise, the prosecution should have produced the relevant records upon which the date of birth was based. The evidence presented by the prosecution regarding the victim’s age lacks the requisite sterling quality necessary to definitively determine her age. Therefore, there is a lack of clinching and cogent evidence to establish that she was a minor on the date of the incident. Nevertheless, the learned trial court held her to be a minor. 27. The next question for consideration would be whether the appellant has committed rape upon her or not ? 20 28. The victim (PW-1) deposed in her statement that she knew the appellant and used to travel to Deharguda DAV Mukhyamantri Public School from her maternal grandfather’s house in the village of Mainpur by a school bus, which was driven by the appellant. As a result, she became acquainted with him. She further stated that they used to have normal conversations over the phone, which eventually led to them falling in love. In paragraph 03 of her testimony, the victim stated that about two years ago, the appellant came to her maternal grandfather’s house at night around 11–12 p.m., after calling her and informing her that he was coming. When she opened the door, the appellant entered the house and went to her room, where she used to sleep alone. He spoke to her and then had sexual intercourse with her. She stated that when she refused to have sex, the appellant reassured her that nothing would happen and then proceeded to have intercourse with her several times. He stayed in her room until around 3–4 a.m., after which he left, and she closed the door again. In paragraph 04 of her testimony, the victim stated that the appellant had come to her maternal grandfather’s house on 3–4 occasions at night, always when the other members of the household were asleep. On each of these occasions, he had sexual intercourse with her, due to which she became pregnant. She further stated that when she started feeling unwell, she underwent a sonography at a hospital and learned that she was pregnant. She later had an abortion in Maikahara, Raipur. In paragraph 05 of her testimony, the victim stated that while she was in the hospital in Raipur, she informed her mother about the incident. She gave her consent for a medical examination, during which her underwear was seized, and her blood sample was taken for DNA testing. 21 She was then produced before the Child Welfare Committee, Gariyaband, and her statement was recorded before a Magistrate under Section 164 of the Cr.P.C. 29. The father of the victim (PW-4) and the mother of the victim (PW-5) both corroborated the statements made by the victim, affirming the accuracy and consistency of her account. 30. Dr. Neha Thakur (PW-6), on 10.07.2020, referred the victim from the District Hospital, Gariyaband, to Raipur Medical College for examination. Following a general examination, it was stated that the pregnancy test of the victim was found to be positive, and other physical examinations were found to be normal. After the evacuation procedure, the product of conception was preserved in normal saline and sent on 10.07.2020 to the concerned Assistant Sub-Inspector for DNA testing. 31. In the present case, Dr. B. Bara (PW-7) examined the victim on 16.07.2020, for a genital examination, as referred by the concerned Police Station. According to the examination report, the external examination revealed no injuries to the victim’s genital area. The report also noted that the hymen was old and torn, HIV was ruled out, and the VDRL and HBsAg tests were negative. Dr. Bara stated that the victim was brought to him after evacuation and opined that she had engaged in sexual intercourse in the past, but there were no signs of recent sexual activity. During cross-examination, Dr. Bara denied the suggestion that the victim had not disclosed the identity of the person who had sexual relations with her. 32. In the present case, Dr. K.K. Negi (PW-11) conducted a genital 22 examination of the appellant, Bhuneshwar Yadav, on 01.12.2020. Upon general examination, Dr. Negi found that the appellant’s secondary sexual characteristics were fully developed, indicating that he was capable of engaging in sexual intercourse. 33. From the observation of the DNA report (C/01), it is evident that the alleles found at each marker in the DNA profile obtained from the Product of Conception preserved after the victim's miscarriage (marked as Ex.C) match the alleles found in the DNA profile obtained from the blood sample of the appellant, Bhuneshwar Yadav (marked as Ex.B) and the DNA profile obtained from the blood sample of the victim (marked as Ex.A). Based on this, it is clearly established that the victim and the appellant, Bhuneshwar Yadav are the biological parents of the fetus marked as Ex.C. 34. After a thorough consideration of all the facts, circumstances, and evidence on record, it has been established that the victim was a minor at the time of the incident. However, it is important to note that the admission and discharge register produced before the learned trial Court pertains only to the victim's enrollment in Class 1. Furthermore, the foundational basis for recording the victim’s date of birth as 03.05.2004 in that register has not been substantiated or proven through any supporting documentation or credible testimony. 35. 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: 23 “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 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.” 36. In view of the facts and circumstances of the case, as well as the evidence available on record, it would not be safe for this Court to conclude that the appellant committed rape upon the victim (PW-1). The testimony of the victim (PW-1) clearly reveals that she was involved in a romantic relationship with the appellant. She has admitted that the appellant had visited her maternal grandfather’s house on three to four 24 occasions during the night. Furthermore, in her cross-examination, she acknowledged that she neither raised an alarm nor made any attempt to inform other members of the household while the appellant was allegedly trying to establish physical relations with her. This conduct indicates that she was a willing participant and that the act, if any, was consensual. Additionally, since it has been established that the victim was not below 18 years of age at the relevant time, she was legally competent to give valid consent. Therefore, it cannot be concluded that the appellant either procured a minor girl for the purpose of illicit intercourse or committed rape upon her, as defined under the relevant provisions of law. 37. The law is well settled that, in cases of rape, a conviction can be sustained even on the sole testimony of the victim. However, there is an important caveat: the testimony of the victim must inspire confidence. Although the victim’s statement does not require corroboration, if it is not credible, the accused cannot be convicted. The prosecution must prove the charges against the appellant beyond a reasonable doubt, which it has failed to do in the present case. 38. 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. 39. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 07.12.2023 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. 25 40. 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. 41. The learned 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/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Brijmohan