1 2025:CGHC:6464-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2232 of 2023 Raja Chouhan S/o Somaru Chouhan Aged About 21 Years R/o Village- Rajauti, Khaalpara, Police Station- Sitapur, District- Sarguja (C.G.) ... Appellant(s) versus State Of Chhattisgarh Through Police Station- Sitapur, District- Sarguja (C.G.) ... Respondent(s) For Appellant(s) : Ashok Swarnkar, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 05.02.2025 1. The criminal appeal arises out of the judgment of conviction and order of sentence dated 02.09.2023 passed by the learned Additional Sessions Judge, Fast Track Special Court, (POCSO) Ambikapur, District- Sarguja (C.G.) in Special Criminal POCSO Case No. 63/2020 whereby, the appellant has been convicted and sentenced as under:- MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.02.07 11:19:39 +0530 2 Conviction under Section Sentence (Rigorous imprisonment) Fine In default of payment of fine additional rigorous imprisonment Section 376(3) of the IPC 20 years Rs. 2000/- 02 months Section 5(l)/6 of POCSO Act 20 years Rs. 2,000/- 02 months All sentences have been directed to run concurrently. 2. The prosecution story, in brief, is that on 20.07.2020, the father of the prosecutrix (PW-01) lodged a report in Sitapur police station to the effect that he is a resident of village Rajauti Khalpara and does farming. He has two daughters and one son. His 15-year-old elder daughter/prosecutrix had given the class VIII examination and she stays at home. On 17.07.2020, at night, all the family members were sleeping after having dinner and the children were sleeping in the next room. At around 10.00 pm, his younger daughter got up and came to tell that her sister/prosecutrix is not in the room, then he and his wife got up and looked in the room and the house but his daughter/prosecutrix was not at home. They told the neighbors about the prosecutrix and started searching for her and searched for her among the nearby relatives but his daughter/prosecutrix was not found. Then, a report was lodged at the police station on the suspicion that the prosecutrix had been lured and kidnapped by an unknown person. On the basis of the complaint submitted by the father/applicant of 3 the prosecutrix, the investigating officer Santosh Kumar Tiwari (PW-9) lodged an First Information Report (FIR) against the accused under Section 363 of the Indian Penal Code under Crime No. 101/2020 at Sitapur police station and the case was taken into investigation. The counter drain receipt of which is FIR-01A. 3. During the investigation, the investigator Sandeep Kaushik, Sub- Inspector (PW-10) prepared the spot map of the incident (Ex.P.- 02). For the examination of the prosecutrix, complaint (Ex.P.-21) was sent to CHC Sitapur. The seizure report of which is (Ex.P-17) and written complaint for medical examination of the accused was sent (Ex.P.-22), whose seizure report is Ex.P.-16. The sealed packet of underwear of the accused was seized and seizure memo (Ex.P.-06) was prepared. The vaginal slide and panty of the prosecutrix were seized and seizure memo (Ex.P.-05) was prepared. The accused was arrested and arrest memo (Ex.P.-23) was prepared and information regarding the arrest was given to the father of the accused Somaru Chauhan as per Ex.P.-23A. The original of the mark sheet of class V of the prosecutrix was seized and seizure memo Ex.P.-07 was prepared. Memo (Ex.P.-18) was given to the Tehsildar, Sitapur for providing the Patwari Nazri map of the incident site, the prepared map is Ex.P.-09 and Panchnata Ex.P.-10. Memo (Ex.P.-18) was sent to the Headmaster Government Primary School Rajauti for providing the mutation register of the complainant and seizure memo (Ex.P.-19) was prepared by seizing the mutation register related to the date of 4 birth of the complainant from Shyama Prasad Gupta, Headmaster Government Primary School Rajauti, the true copy of the original mutation register is Ex.P.-20C. Head Constable Suresh Bhagat (PW-12) went to Police Outpost Banjari Raipur on 26-07-2022 and recovered the complainant and prepared the recovery panchnama (Ex.P.-03). 4. During the investigation, the investigating officer Sandeep Kaushik, Sub-Inspector, sent a report Ex.P.-24 to the Judicial Magistrate First Class Ambikapur for recording the statement of the prosecutrix under Section 164 Cr.P.C. Complaint (Ex.P.-25) was sent for providing a woman police officer to record the statement of the accused under section 161 Cr.P.C. The statement of the accused under section 164 Cr.P.C. is Ex.P.-12. Complaint (Ex.P.-26) was sent to the Chairman Child Welfare Committee for recording the statement of the accused. Report (Ex.P.-27) was sent to the Joint Director Regional Forensic Science Laboratory Ambikapur through the Superintendent of Police, Surguja for chemical testing of the seized property and receipt (Ex.P.-27A) was received, the report of which is Ex.P.-29. Statements of witnesses were recorded as per their statement and after complete of investigation, the charge-sheet was presented in the court. 5. The charge-sheet was prepared and read out to the accused under Sections 363, 366, 376(3), 376 (2) (n) of the Indian Penal 5 Code and Sections 03 (a)/04 (2), 05 (l)/6 of the Protection of Children from Sexual Offences Act, and the accused denied the charges and claimed trial. 6. In order to establish the charge against the appellant, the prosecution examined as many as 13 witnesses and exhibited the documents Exs.P-1 to P-29. The statement of the appellant under Section 313 of CrPC was also recorded and during the examination, a total of 104 questions were asked to the accused, in which the accused pleaded that he was falsely implicated due to enmity and that he was innocent and no defence evidence was presented by the accused. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 7. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of author of the dakhil-kharij register, the same cannot be taken into consideration for determination of age of the prosecutrix. Dakhil- kharij register is a weak type of evidence. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the prosecutrix that on the date of 6 incident she was below 18 years of age. The prosecutrix is well aware of the consequences but she has not reported the matter at the time of commission of the offence therefore it is not believable that anyone can mislead her or prevent her to file the report in the pretext of marriage. The main witnesses of the case are close relative and interested witnesses of the case but in spite of the above there are contradictions between the evidences of the witnesses. The prosecturix has categorically stated in her statement before the trail court that on the date of incident 17.07.2020 she left her house with her own and thereafter joined the appellant, it is further stated by her that she went Raipur with the present appellant but then also no FIR was lodged by the prosecutrix (P.W.2) against appellant There is contradiction in the statement of the of the father of the prosecutrix as well as in the statement of the sister of the prosecutrix as there is a delay of 3 days in lodging the FIR as well as the FIR was lodged against unknown person. The evidence of the prosecution witnesses have not supported the case of the prosecution and there are material contradiction, omission and improvement in the version of the statements of the witnesses. There is nothing on record on the basis of which the present appellant has been convicted and sentenced. The trial Court has failed to appreciate the evidence of Dr. Nisha Gupta (PW-06), who has specifically stated that on examination of the prosecutix, she found that the prosecutrix is fully grown lady and there was no external or internal injuries over 7 her body including her private parts. He also submits that if the entire case of the prosecution is taken as it is, then also the alleged offences are not made out against the appellant and he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the prosecutrix was minor and below 18 years of age at the time of incident, which is proved by the mutation Register (Ex.P-20), and the Progress Sheet of Class V of the prosecutrix (Ex.P-07) which contains the date of birth of the prosecutrix as 07.03.2005. The mutation Register (Ex.P-20) is admissible piece of evidence to determine the age of the prosecutrix. Therefore there is no illegality or infirmity in the findings of the learned trial Court. The prosecution has proved its case beyond reasonable doubt and the prosecutrix (PW-2) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 9. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 10. In order to consider the age of the prosecutrix, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the mutation Register (Ex.P-20), and 8 the Progress Sheet of Class V of the prosecutrix (Ex.P-07) which is sought to be proved by witness Shyam Prasad Gupta (PW-08), Headmaster of Government Primary School, Rajauti. Mr Shyam Prasad Gupta (PW-08) has deposed in his statement that on receipt of complaint (Ex.P.-18) for demanding mutation register regarding the birth of the prosecutrix who was studying in his school related to Crime Number-101/2020 of police station- Sitapur, on 06.08.2020, he gave the certified copy of mutation register related to the date of birth of the prosecutrix to the police, which was seized by the police and seizure sheet (Ex.P.-19) was prepared. The witness further stated that the date of birth of the prosecutrix is recorded as 07.03.2005 on serial number 1250 of the original mutation register. The original mutation register is Exhibit P-20, the certified copy of which is Exhibit P-20C. He further deposed that the prosecutrix had taken admission in class 1 in his school on 20.07.2012 and left the school on 01.04.2017 after passing class 5. 11. Witness Shyam Prasad Gupta, Headmaster (PW-08) has admitted in his cross-examination that the admission-discharge register prepared by him does not have page number and certification. The date of birth of the complainant is written separately in red ink, while the date of birth of other students is written in blue ink. The witness has voluntarily stated that the entry related to the complainant has not been made by him but by the previous Headmaster, hence he cannot tell why the date of 9 birth of the complainant is written in red ink. The witness has also voluntarily stated that he does not know whether the complainant and her sister studied anywhere before taking admission in his school or not. 12. In the mutation register, there is no any document mentioned to prove the date of birth of the victim produced at the time of her admission. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the prosecutrix. 13. The prosecutrix (PW-02) has stated in her judicial evidence that she was born in the year 2005 and she does not remember her date of birth. At present she is studying in class VIII. The father of the prosecutrix (PW-01) has stated in his evidence that the age of the accused is 15 years and he does not remember the date of birth of the accused and that at the time of the incident the accused was studying in class IX. The sister of the accused (PW- 03) has stated in her evidence that her elder sister/accused is currently 17 years old. She does not remember the date of birth of the accused. 14. 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 prosecutrix so as to hold that on the date of incident she was minor and below 18 10 years of age. Only on the basis of mutation register it would not be safe to hold that the prosecutrix was minor on the date of incident. The statement of the prosecutrix, father of the prosecutrix (PW-01) and sister of the prosecutrix (PW-3) as also the statement of Shyam Prasad Gupta, Headmaster (PW-08), Headmaster of Government Primary School Rajauti are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 07.03.2005. 15. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other 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." 11 16. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. It was 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. 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 12 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." 17. In the matter of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, (2022) 8 SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 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 13 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 Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a 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 official document maintained in the 14 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.” 18. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the 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. 15 Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis 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 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: 16 “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) 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.” 19. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and 17 legally admissible evidence have been brought by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the trial Court in the impugned judgment has held her minor, hence, we set aside the finding given by the trail Court that on the date of incident the prosecutrix was minor. 20. So far as the issue of forceful sexual intercourse by the appellant upon the prosecutrix is concerned, we have carefully perused the statement of the prosecutrix. In her statement, the prosecutrix has stated that the incident took place on 17.07.2020. The accused is a resident of her village and the accused was already known to her. On the day of the incident, she and accused met near the village school, she also wanted to marry the accused and she alongwith accused went to Raipur, by asking for a lift from a pickup vehicle. In Raipur, the accused kept her in a room in an iron factory and she stayed there with the accused for about 10 days. The accused had physical relations with her four-five times with her consent. The accused and she wanted to marry each other. The witness has stated that due to leaving without informing the family, her father lodged report in the Police Station, then the police came to Raipur and brought her back to the village. 21. The prosecutrix (PW-1) in her cross-examination has accepted that she knows the accused Raja Bauhan. She further stated that the incident is of 17.07.2020. The accused Raja Bauhan is a resident of her village and she already knew the accused. On the day of the incident, she and the accused met near the village 18 school. She also wanted to marry the accused, then prosecutrix and the accused asked for a pickup vehicle and went to Raipur, Chhattisgarh. She further admitted that accused kept her in a room in an iron factory in Raipur. She stayed in the room with the accused for about ten days. The accused had physical relations with her four to five times with my consent. The accused and prosecutrix wanted to marry each other. She further admitted that since she left home without informing anyone, her father had lodged a report in the police station, then the police came to Raipur and brought her back to the village. She further admitted that the accused and accused belong to the same village and know each other well. She later admitted that she too loved the accused and had made the plan to elope with the accused and she herself had called the accused. She admitted that the accused Raja Chauhan had told her that there was no arrangement for food and water right now and they will not elope now, but the prosecutrix herself did not agree. It was because of prosecutrix’s stubbornness that the accused agreed to elope with her. She also admitted that the accused was known to her parents. Her parents did not agree to her marriage with the accused because he belonged to a different caste. She lastly admitted that she is still ready to marry the accused even after he is released from jail. 22. Regarding the examination of the prosecutrix and the accused, witness Sandeep Kaushik, Sub-Inspector (PW-10) has stated in 19 his evidence that the complaint (Ex.P-21) was sent to CHC Sitapur for examination of the prosecutrix. The seizure was made and written complaint (Ex.P.-22) was sent for medical examination of the accused. The sealed packet of underwear of the accused was seized and seizure memo (Ex.P.-06) was prepared. The vaginal slide and panty of the prosecutrix were seized and seizure memo (Ex.P.-05) was prepared. Report (Ex.P.-27) was sent to Joint Director Regional Forensic Science Laboratory Ambikapur through Superintendent of Police Surguja for chemical examination of the seized property and receipt (Ex.P.-27A) was received. 23. Regarding the medical examination of the prosecutrix, witness Dr. Nisha Gupta (PW-06) has stated in her evidence supporting the examination report (Ex.P.-17) that she had examined the prosecutrix on 27.07.2020 and found that the prosecutrix was mentally and physically healthy, her secondary sexual characters were developed, there were no injury marks on the entire body. The prosecutrix had stated that she had last had physical relations with her on 26.07.2020. There were no injury marks on the external genitals and thighs, the hymen was absent and her menstruation had started and there was a fungal infection in her internal genitals. Two slides were prepared from her vaginal discharge, packed and sealed and handed over to the presenting constable advising chemical tests. The brown colored panty of the 20 prosecutrix was sealed and handed over to the presenting female constable advising chemical tests. The witness further stated that in her opinion that no definite opinion can be given about the instant sexual intercourse and she recommended chemical examination of the vaginal slide and expert opinion. 24. Regarding the medical examination of the accused, witness Dr. Piyush Aggarwal (PW-05) has stated in his evidence supporting the examination report Ex.P-16 that he had examined the accused on 27.07.2020 and in the examination he found the accused's secondary sex character to be fully developed, cremasteric reflex present and no disease and no injury marks. According to his opinion, the accused was a person capable of having sexual intercourse. 25. Close scrutiny of the evidence, it is clear that the prosecutrix was a consenting party. In her cross-examination, she has accepted that she knows the accused Raja Bauhan. The incident is of 17.07.2020. The accused Raja Bauhan is a resident of her village and she already knew the accused. On the day of the incident, she and the accused met near the village school. She also wanted to marry the accused, then prosecutrix and the accused asked for a pickup vehicle and went to Raipur, Chhattisgarh. She further admitted that accused kept her in a room in an iron factory in Raipur. She stayed in the room with the accused for about ten 21 days. The accused had physical relations with her four to five times with my consent. The accused and prosecutrix wanted to marry each other. She further admitted that since she left home without informing anyone, her father had lodged a report in the police station, then the police came to Raipur and brought her back to the village. She further admitted that the accused and accused belong to the same village and know each other well. She later admitted that she too loved the accused and had made the plan to elope with the accused and she herself had called the accused. She admitted that the accused Raja Chauhan had told her that there was no arrangement for food and water right now and they will not elope now, but the prosecutrix herself did not agree. It was because of prosecutrix’s stubbornness that the accused agreed to elope with her. She also admitted that the accused was known to her parents. Her parents did not agree to her marriage with the accused because he belonged to a different caste. She lastly admitted that she is still ready to marry the accused even after he is released from jail. Hence, the said fact cannot be disputed that the prosecutrix was a consenting party and went with the appellant / accused willfully. 26. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if 22 her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 27. Considering the entire evidence available on record and the conduct of the prosecutrix, we are of the opinion that the prosecutrix was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 376(3) of the IPC and Section 5(l)/6 of the POCSO Act would not be made out against the appellant. 28. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment and conviction and order of sentence dated 02.09.2023 is set aside. The appellant stands acquitted from all the charges. 29. Keeping in view of the provisions of Section 437-A CrPC (now Section 481 of BNSS), the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court. 23 30. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the jail term, to serve the same on the Appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet