1 CRA No. 754 of 2017 2025:CGHC:50390 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 754 of 2017 B.K. Singh Sarthi S/o Kanchan Singh Sarthi, Aged About 23 Years R/o Village Khamhar Ukadand, Police Station And Tahsil Dharamjaygarh, District Raigarh, Chhattisgarh., Chhattisgarh ... Appellant versus State Of Chhattisgarh Through District Magistrate, Raigarh, Chhattisgarh Police Station Dharamjaygarh, District Raigarh, Chhattisgarh., Chhattisgarh ... Respondent(s) (Cause title taken from CIS) For Appellant : Ms. Sareena Khan, Advocate. For Respondent/State : Ms Isha Jajodia, Panel Lawyer. Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board 09/10/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 08/03/2017 passed in Case No. POCSO Act SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.10.14 10:39:45 +0530 2 CRA No. 754 of 2017 2012/31/2015 by the learned Second Additional Sessions Judge Raigarh District Raigarh (C.G.), whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC R.I. for 02 years with fine of Rs. 500/-, with default stipulation. U/s 366 of the IPC R.I. for 03 years with fine of Rs. 1,000/-, with default stipulation. U/s 6 of the POCSO Act R.I. for 10 years with fine of Rs. 1000/-, with default stipulation. All the sentences were directed to run concurrently. 2. The prosecution story, in brief, is that on 07.02.2015, the victim left home around 9:00 a.m. for school but did not return by evening. Her family members searched for her but could not find her. During the search, it was revealed that B.K. Singh Sarathi, a resident of the same village, had enticed and taken away the victim on the pretext of marriage. On the report of the victim’s relative, a case under Sections 363 and 366 of the IPC was registered. During investigation, on 13.02.2015 , the victim was recovered from 3 CRA No. 754 of 2017 the possession of the accused near Nichepara Petrol Pump, Dharamjaigarh. Upon inquiry, the victim stated that the accused had taken her to the forest and committed sexual intercourse against her will and continued to sexually assault her from 07.02.2015 to 12.02.2015 while moving from place to place. 3. For determination of age, the dakhil kharij register (Ex. P/11- C) relating to the prosecutrix was seized. Statements of the witnesses were recorded, and the accused was arrested. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. before the Magistrate. The seized articles were sent to the Forensic Science Laboratory for chemical examination. Upon completion of investigation, charge- sheet was filed against the accused before the concerned Court. After framing the charges, the same was read over to the appellant, which he denied and claimed to be tried. In order to bring home the offence, the prosecution has examined 15 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, 4 CRA No. 754 of 2017 wherein he has pleaded his innocence and false implication in the matter and no defence witness in support has been examined. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 08/03/2017 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 4. Ms. Sareena Khan, learned counsel for the appellant would submit that the conviction and sentence passed by the learned Trial Court are perverse, contrary to law, and based on improper appreciation of evidence. It is submitted that the prosecutrix was major at the time of the alleged incident and had accompanied the appellant of her own free will, thereby excluding the applicability of Sections 363 and 366 IPC. The relationship between the appellant and the prosecutrix was consensual, as she voluntarily travelled and resided with him at various places without any complaint or resistance. The medical evidence of PW-15 Dr. Ranjana Tirki reveals no external or internal injuries, no signs of recent 5 CRA No. 754 of 2017 sexual intercourse, and no indication of force, thus ruling out the offence under Section 376 IPC and 6 POCSO Act. The prosecution failed to establish the minority of the prosecutrix as no birth certificate was seized or produced, nor was any ossification test conducted, and even the father of the prosecutrix admitted that no ofÏcial record of age existed. The testimonies of PW-2, PW-3, and other witnesses are based on hearsay, and witnesses PW-10 and PW-11 expressed ignorance about the alleged recovery of the prosecutrix from the appellant’s custody, creating serious doubts about the prosecution story. Further, there was an unexplained delay in lodging the FIR, and the prosecution also failed to produce the chemical examination report of the seized articles and vaginal slides. It is also pointed out that though the charge was framed under Section 4 of the POCSO Act, the Trial Court wrongly convicted under Section 6, resulting in excessive punishment. Since the essential ingredients of kidnapping and rape were not proved beyond reasonable doubt, the conviction is unsustainable, and the appellant deserves to be acquitted by setting aside the impugned judgment in the interest of justice. 6 CRA No. 754 of 2017 5. On the other hand, Ms. Isha Jajodia learned Panel Lawyer appearing for the respondent/State would support the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt that the victim was minor on the date of commission of offence and the trial Court has rightly convicted and sentenced the appellant, as such, the criminal appeal deserves to be dismissed. 6. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 7. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ? 8. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- 7 CRA No. 754 of 2017 “361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” 9. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 8 CRA No. 754 of 2017 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian. 10. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:- “It would, however, be sufÏcient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out 1 AIR 1965 SC 942 9 CRA No. 754 of 2017 of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”. 11. Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), upon a careful consideration of the evidence, particularly the testimony of the prosecutrix, this Court is of the view that the offence under Section 363 IPC is not made out. The prosecutrix admitted in her deposition that the appellant was a resident of her own village and that she had known him for a long time. She also accepted that she used to talk to him but never complained to her parents regarding his behaviour or 10 CRA No. 754 of 2017 any alleged misconduct. The evidence further reveals that when the appellant met her near the Government High School, she did not raise any objection or alarm when he asked her to go along with him. She accompanied him first to village Lodichua, then to village Paremere, and later to Dhanpuri, staying at each place for one or two days. During this entire period, she never made any complaint to any person, villager, or authority, nor did she make any attempt to escape or seek help, though she had ample opportunity to do so. These facts clearly demonstrate that the prosecutrix was neither taken nor enticed away by the appellant; rather, she went with him of her own free will. On the other hand, it is clearly established that the victim herself accompanied the appellant and there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC in light of judgment of the Supreme Court in S.Varadarajan (supra). Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial 11 CRA No. 754 of 2017 Court is absolutely unjustified in convicting the appellant for offence under Section 363 of the IPC. 12. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC ? 13. Bare perusal of the evidence of the victim girl, it appears that victim girl voluntarily accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the IPC. Though, the learned State counsel vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366 of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence 12 CRA No. 754 of 2017 under Section 366 of the IPC. 14. Now the question arises before this Court whether the victim was minor on the date of incident or not? 15. The Victim (PW1) in her deposition has stated that her date of birth is 23.09.2000. (PW-2) father of the prosecutrix has stated that victim was studying in Class IX at the time of the incident and that her age became 15 years in September of the same year. However, during cross-examination, he admitted that he had not obtained any birth certificate for any of his children and that the dates of birth were only written and kept at home. He further stated that the police had not demanded any such record and that he had merely provided his daughter’s mark-sheet when it was asked for. He also disclosed that his elder son was born on 5 March 1998, and the victim was born about two and a half years thereafter. 16. Jwala Shankar Prasad Sahu (PW-8), Shikshakarmi at the Government Middle School has stated in his deposition that that he was on leave on the date when the prosecutrix was admitted to the school, and therefore, he was not personally 13 CRA No. 754 of 2017 present at the time of her admission. He also stated that he did not know who had admitted the prosecutrix and that no birth certificate was produced at the time of admission. He clarified that since the prosecutrix was admitted in Class VI, her date of birth was recorded on the basis of the marksheet and transfer certificate (T.C.) from her previous school. 17. Perusal of the aforesaid statements of the witnesses, it is evident from his testimony that the recorded date of birth (23.09.2000) in the school register was not based on any original or ofÏcial birth certificate, but merely on the information derived from earlier school documents, rendering the authenticity of the recorded age doubtful. 18. 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, the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 14 CRA No. 754 of 2017 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, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents 15 CRA No. 754 of 2017 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 vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the 16 CRA No. 754 of 2017 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 17 CRA No. 754 of 2017 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." 19. 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, 18 CRA No. 754 of 2017 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. 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 19 CRA No. 754 of 2017 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 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 20 CRA No. 754 of 2017 factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." 20. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue OfÏcial (Deputy Tahsildar) had stated on oath that the records for the year 1997 21 CRA No. 754 of 2017 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child 22 CRA No. 754 of 2017 or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a) (i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) 23 CRA No. 754 of 2017 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." 21. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. Hence, in absence of proof regarding the date of birth of the victim, the finding of the learned trial Court that the victim was a minor on the date of incident cannot be acceptable. Even no ossification test has been conducted to determine the age of victim. Therefore, the conviction and sentence imposed upon the appellant under Section 6 of the POCSO Act is not made out. 22. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. 23. The question for consideration is whether the trial Court is justified in convicting the appellant for the offences in question ? 24 CRA No. 754 of 2017 24. PW-1, victim stated that she was residing with her parents in village Khamhar and studying in Class IX. She stated that about eight to nine months prior to the incident, while going to school around 9:30 a.m., she met the accused B.K. Singh Sarathi, who persuaded her to accompany him for an outing and took her first to village Lodichua, then to Paremere, and thereafter to Dhanpuri, staying at each place for one to two days. During this period, her parents lodged a missing report, and she was subsequently recovered by the police from Dhanpuri. She further stated that the accused had forcibly committed sexual intercourse with her at Lodichua, Paremere, and Dhanpuri, without her consent. She confirmed that she was medically examined after recovery, and her statements were recorded by the police and before the Magistrate. In cross-examination, she admitted knowing the accused from her village but denied voluntarily accompanying him or having any romantic relationship with him. She stated that she had resisted the acts, but the accused forced sexual intercourse on her repeatedly. Her testimony thus established that the accused deceived her, took her away from her lawful guardianship, and committed 25 CRA No. 754 of 2017 repeated acts of sexual assault against her consent. Whereas, in her statement recorded under Section 164 of the Cr.P.C, this witness has stated that she knew the accused, B.K. Singh Sarathi, and that her date of birth was 23.09.2000. She stated that on Saturday, the 7th, while proceeding to the Government Higher Secondary School, Khamhar, at around 9:00 a.m., the accused met her outside the school and, under the pretext of marriage, enticed her and took her away. She further stated that the accused first took her to the Bongojharia forest hills, where they stayed for one day, during which he allegedly committed sexual acts upon her. Thereafter, he took her to village Lodichua, where she was kept for one day at the house of his acquaintance, and during that period, she stated that he again committed sexual acts against her consent. Subsequently, she was taken to village Paremere, to her maternal uncle’s house, where she was kept for two days, and during that time, she stated that the accused forcibly committed sexual acts upon her. Thereafter, the accused took her to Dhanpuri, and while being taken to Dharamjaigarh, they were intercepted by the police. She stated that the accused had forcibly taken her 26 CRA No. 754 of 2017 away under the pretext of marriage and committed sexual intercourse against her. 25. Bare perusal of the above statements of the Victim, it is quite vivid that there are material contradictions and omissions in 164 statement and in her Court statement. In her statements, the prosecutrix has made certain contradictions that are relevant for consideration. In one statement, she deposed that the accused persuaded her to accompany him for an outing, taking her to Lodichua, Paremere, and Dhanpuri over several days, during which he forcibly committed sexual intercourse, and that she had resisted the acts and did not go with him voluntarily. In another statement, she stated that the accused enticed her under the pretext of marriage, first took her to the Bongojharia forest hills, and thereafter to Lodichua, Paremere, and Dhanpuri, specifying the duration of stay at each place and mentioning the involvement of acquaintances and her maternal uncle’s house. 26. PW-2 father of the victim has stated that on 7th February 2015, when he went to work, his daughter went to school as 27 CRA No. 754 of 2017 usual, but did not return home after school hours. Upon being informed by family members, he came home and, along with his wife, began searching for her. A local boy, Rajkumar, informed him that someone named Ankure Yadav had seen his daughter going with the accused. When they were unable to locate her, he filed a missing person report at the police station, and also signed the site map prepared by the police. The victim later told him that the accused had lured and taken her first to Lodhi Chuwa, then to Paremer village, and subsequently to Dhanpuri, from where the accused brought her to the police station. He stated that the accused had committed sexual assault against his daughter at Lodhi Chuwa, Paremer, and Dhanpuri. The father confirmed that he had not previously made formal birth certificates for his children but had recorded their dates of birth at home. He acknowledged that the accused belonged to the same village and lived about 50 meters from his house, and that the accused and his family had a poor reputation and were prone to quarrels. He denied having seen his daughter elope with the accused voluntarily, denied that she had gone to her grandmother’s house on her own, 28 CRA No. 754 of 2017 and denied that the police had not recorded his statement or prepared a site map. He also denied that there was any dispute over land that could have prompted him to falsely implicate the accused, afÏrming that his daughter had informed him about the sexual assault by the accused. 27. (PW-3) Mother of the victim has stated in her police statement that the victim had gone missing from school and that Rajkumar had informed her about the victim going along with the accused. During cross-examination, she denied that there had been any quarrel, dispute, or conflict between her family and the family of the accused. She admitted that the report was lodged two days after the girl went missing but denied that the girl had gone to her maternal grandmother’s house or that she had falsely implicated the accused out of malice or vendetta. 28. Dr. Ranjana Tirkey (PW9) has stated that during per-vaginal examination of victim, the hymen was found torn , though the vaginal walls were normal. Dr. Tirkey opined that the hymen had not been torn immediately but appeared to have been torn two to three days prior. The speculum 29 CRA No. 754 of 2017 examination revealed healthy vaginal and cervical walls, and the uterus and vaginal canal were normal. White stains were observed on the victim’s panties, for which chemical examination was advised. Vaginal slides and swabs, along with the panties, were sealed and handed over to the police for chemical examination. His report was marked as Exhibit P-24. she expressed the opinion that the victim had been subjected to sexual intercourse, but it was not possible to determine whether it was consensual or forcible. No injuries or bleeding were observed in the vaginal area, and no signs of immediate intercourse were found. she stated that the stains could be two to three days old and that she had not conducted chemical testing. As per the report of the Forensic Science Laboratory, Exhibit “D”, which was the slide of the accused B.K. Singh, was found to contain human spermatozoa. Exhibits “A”, “B”, and “C”, which respectively consisted of the victim’s grey-coloured panty, vaginal slides, and vaginal swabs sealed by the medical ofÏcer, did not reveal the presence of semen stains or human spermatozoa. 29. Upon considering the entire evidence available on record, this 30 CRA No. 754 of 2017 Court found that there are major contradictions and omissions in the statement of the Victim, which does not inspire confidence over the credibility of her statement because she had given statement under Section 164 Cr.P.C contradictory to her statement given before the trial Court, which in the opinion of this Court, seems unreliable. 30. It is the trite law that a statement recorded under Section 164 of the Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. The Supreme Court in the matter of R. Shaji v. State of Kerala2 has held as under:- “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal Court or even to contradict the same. As the defence had no opportunity to cross- 2 (2013) 14 SCC 266 31 CRA No. 754 of 2017 examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence. ” 31. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:- “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for 32 CRA No. 754 of 2017 any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more recise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender 33 CRA No. 754 of 2017 guilty of the charge alleged.” 32. Recently, the Supreme Court in the matter of Nirmal Premkumar and Another v. State Rep. by Inspector of Police, 2024 SCC OnLine SC 260 has held at para 14 & 15 as under:- “14. Krishan Kumar Malik v. State of Haryana, this Court laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufÏcient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufÏcient due to identified flaws and lacunae.. It was held thus: "31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufÏcient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the 34 CRA No. 754 of 2017 appellant guilty of the said offences. 32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant." 15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a "sterling witness" without further corroboration, out the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning o the end (minor inconsistences excepted), from the initial statement the oral testimony, without creating any doubt qua the prosecution's ase. While a victim's 35 CRA No. 754 of 2017 testimony is usually enough for sexual offence ases, an unreliable or insufÏcient account from the prosecutrix, marked by identified flaws and gaps, could make it difÏcult for a conviction to be recorded.” 33. On careful consideration of the evidence on record, it is observed that the statement of the victim suffers from material contradictions on significant aspects of the case. In her statement recorded under Section 164 Cr.P.C., the victim stated that the accused had established physical relations with her on the pretext of marriage. However, in her deposition before the Court, she introduced a different version, omitting any reference to the alleged promise of marriage and attributing the act to forcible sexual intercourse. This inconsistency goes to the root of the prosecution case and casts doubt on the credibility of the victim’s version. 34. Further, there are contradictions regarding the circumstances under which she left home, the period of her stay with the accused, and her conduct after the alleged incident. These variations are not minor or peripheral but 36 CRA No. 754 of 2017 strike at the core of the prosecution story. In absence of corroboration from medical or scientific evidence, such contradictions render the testimony of the victim unreliable to sustain conviction beyond reasonable doubt. 35. As a fallout and consequence of the aforesaid legal analysis, the impugned judgment dated 08/03/2017 is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal Appeal is allowed. 36. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Bibhu Datta Guru) Judge Shoaib