1 2025:CGHC:8816-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2364 of 2023 Chiranjeet Dholai S/o Shri Gurupodo Dholai, aged about 33 years R/o Village - Nona Ghospur, Post Aketarpur P.S. Bhagwanpur, District - East Medinapur (West Bengal) --- Appellant versus State of Chhattisgarh Through - S.H.O. P.S. Akaltara, District Janjgir- Champa (C.G.) --- Respondent CRA No. 1853 of 2023 Meena @ Chhoti Mathur, wife of Dinesh Rekwar, aged about 20 years resident of village Katghari, Police Station Akaltara, District - Jangir- Champa, Chhattisgarh. Presently residing at village Rupeta, Police Station Asta, District -Sehore (M.P.) --- Appellant Versus State of Chhattisgarh, through Police Station Akaltara, District - Janjgir- Champa, Chhattisgarh. --- Respondent For Appellant in CRA No. 2364/2023 : Mr. Ravindra Sharma, Advocate For Appellant in CRA No. 1853/2023 : Mr. Vivek Singhal, Advocate For State/Respondent : Mr. Shailendra Sharma, Panel Lawyer ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.02.21 10:29:37 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal , Judge P er Ramesh Sinha, CJ 20.02.2025 1. Heard Mr. Ravindra Sharma, learned counsel for the appellant in CRA No. 2364/2023 and Mr. Vivek Singhal, learned counsel for the appellant in CRA No. 1853/2023 as well as Mr. Shailendra Sharma, learned Panel Lawyer, appearing for the State/respondent. 2. It has been stated by learned State Counsel that notice has been served upon PW-7, uncle of the victim. 3. Today, though the matters are listed for hearing on I.A.No.02/2023 in CRA No. 2364/2023, application for suspension of sentence and grant of bail to the appellant, however, with the consent of learned counsel for the parties, both the appeals are heard finally. 4. Since both the above-captioned appeals arise out of a common factual matrix and common judgment, this Court is disposing of both these appeals by a common judgment. 5. Both these Criminal Appeals have been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) against the impugned judgment of conviction and order of sentence dated 11.09.2023 passed by the learned First Additional Sessions Judge (POCSO Act) Janjgir, District- Janjgir-Champa (C.G.) in Special Session Case No.42/2012, by which the 3 appellants have been convicted and sentenced in the following manner with a direction to run all the sentences concurrently:- Appellant Chiranjeet Dholai in CRA No. 2364/2023 : CONVICTION SENTENCE U/s 363/34 of IPC R.I. for 03 years and fine of Rs.10,000/- in default of payment of fine, additional S.I. for 03 months U/s 366 of IPC R.I. for 03 years and fine of Rs.10,000/- in default of payment of fine, additional S.I. for 03 months U/s 376(2)(n) of IPC R.I. for 10 years and fine of Rs.20,000/- in default of payment of fine, additional S.I. for 06 months U/s 376(3) of IPC Life imprisonment, which shall for remainder of his natural life and fine of Rs.50,000/- in default of payment of fine, additional S.I. for 01 year. Appellant Meena @ Chhoti Mathur in CRA No. 1853/2023 : CONVICTION SENTENCE U/s 363/34 of IPC R.I. for 03 years and fine of Rs.10,000/- in default of payment of fine, additional S.I. for 03 months U/s 366-A of IPC R.I. for 03 years and fine of Rs.10,000/- in default of payment of fine, additional S.I. for 03 months 6. Case of the prosecution, in brief, is that uncle of victim has given a written complaint Ex.P-5 in police station Akaltara about enticement of victim by unknown person on the ground that on dated 13.12.2021 at about 2:00 PM his minor niece (victim), age 4 13 years has gone from village Katghari without disclosing anything to them. She was searched here and there, but not found. She was in touch telephonically with the holder of mobile No. 6305108572, therefore, have doubt on him. On the basis of said complaint, First Information Report (in short FIR) Ex.P-6 has been registered in P.S. Akaltara against unknown person under Section 363 of IPC on dated 31.12.2021. 7. On registration of FIR case was investigated, in which victim was recovered from Child Welfare Committee (in short CWC) East Mednipur and recovery Panchnama was prepared vide Ex.P-1. Statement of the victim under Section 164 of Cr.P.C. was got recorded from Judicial Magistrate, Pamgarh vide Ex.P-4. After obtaining consent of victim and her mother vide Ex.P-3, the victim was medically examined from Community Health Center, Akaltara vide Ex.P-13. Two vaginal slides prepared by doctor and undergarment of the victim were seized vide Ex.P-28. Crime detail form/rough site-plan was prepared by police vide Ex.P-27. In order to ascertain the age of the victim, a letter (Ex.P-8) was written to Head Master for production of admission register (dakhil-kharij register) and Tattima and on his production taken into possession in presence of the witnesses vide Ex.P-10 and later on, after obtaining photocopy of the same vide Ex.P-9C & Ex.P-12C, the original dakhil-kharij register was returned to Head Master on supurdnama vide Ex.P-11. Statement of the witnesses were recorded. Accused Chiranjeet Dholai was arrested vide 5 Ex.P-15 and an application (Ex.P-16) was sent for taking the accused on remand and accordingly, permission was granted vide Ex.P-17, thereafter, accused Chiranjeet was medically examined vide Ex.18. Accused Meena @ Chhoti Mathur was arrested vide Ex.P-19 and information about her arrest was given to her elder sister vide Ex.P-20. Seized articles were sent through concerned Superintendent of Police for chemical examination to Regional Forensic Science Laboratory, Bilaspur vide Ex.P-23, receipt of the same was received vide Ex.P-24 and after examination, the FSL report was received vide Ex.P-25. 8. After completion of investigation, charge-sheet/challan under Section 173 Cr.P.C. was filed before the Court of First Additional Sessions Judge (POCSO), Janjgir, District-Janjgir-Champa (C.G.) for the offence punishable under Section 363, 366, 366A, 376, 34 of I.P.C. and Section 4, 6, 17 of POCSO Act. 9. When charges were framed against the accused and their contents were read out and explained to them, they denied the charges and claimed trial. 10. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 16 witnesses, namely, father of victim PW-1, victim PW-2, mother of victim PW-3, Vijay Kumar Sharma PW-4, Sudhir Kumar Kawar PW-5, Dr. Lalita Toppo PW-6, Complainant/uncle of victim PW-7, Shiekh Safiullah PW-8, Nehal Yadav PW-8, ASI Lambodar Singh 6 PW-10, Sunita Nag Banjare PW-11, brother of victim PW-12, Inspector Lakhesh Kewat PW-13, Head Constable Anita Patle PW-14, Head Constable Arun Kumar Kaushik PW-15 and ASI Anil Tiwari PW-16. Beside the aforesaid ocular evidence, prosecution has also tendered and exhibited the documents Ex.P-1 to Ex.P-28. 11. After prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C., in which all the incriminating materials were put to them and after recording their respective replies, they entered into defence, but they have given no evidence, either oral or documentary, in their defence. 12. The learned trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 11.09.2023 convicted and sentenced the accused/appellants in the manner mentioned in the opening paragraph of this judgment, against which these appeals under Section 374(2) of the CrPC have been preferred by the appellants calling in question the impugned judgment. 13. Mr. Ravindra Sharma, learned counsel for the appellant - Chiranjeet Dholai in CRA No. 2364/2023 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 victim that on the date of the incident she was minor and less than 18 years of age. In 7 absence of examination of any supporting document so as to prove the entry made in the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the victim. Admission and discharge 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 victim that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the father and mother of the victim have not disclosed date of birth of the victim, as such, there is no legally admissible and convincing evidence available on record to establish that the victim was minor on the date of incident. 14. Mr. Sharma further argued that the learned trial Court has failed to appreciate that the statement made by the victim suffers from cognate infirmity and there is material omission and contradiction in her statement. As per complaint, the girl was missing since 13.12.2021, but the missing complaint has been lodged on 31.12.2021 i.e. after lapse of almost 18 days and the delay in lodging the complaint has also not been properly explained. The victim has also not been recovered from the custody of the appellant and the present appellant has been falsely implicated only on the basis of suspicion. He submitted that the learned trial Court has also failed to appreciate that the statement of victim is also not corroborated with the medical evidence. In support of his contention, he placed reliance on the judgment passed by the 8 Hon’ble Supreme Court in the matter of Dola @ Dolagobinda Pradhan vs The State Of Odisha, reported in 2018 AIR SC 4020. He also submitted that the prosecution has also failed to prove that the victim was with the appellant from the date of missing i.e. 13.12.2021 till the date of recovery i.e. 03.02.2022. Therefore, the alleged offences are not made out against the appellant and he is entitled for acquittal. 15. Mr. Vivek Singhal, learned counsel for appellant – Meena @ Chhoti Mathur in CRA No. 1853 of 2023 vehemently argued that the conviction of the appellant is totally erroneous and against the evidence presented in the case because as per statement recorded under Section 164 Cr.P.C., there is only allegation that the present appellant had gone for a walk with the victim near the canal outside the village where co-accused Chiranjeet Dholai present there with an auto and she told the victim to sit in auto she will manage. He also submitted that there is no evidence regarding his active participation in the commission of offence, the prosecution has not proved the case against the present appellant beyond all the reasonable doubt. Hence, the appellant is entitled for the benefit of doubt. 16. On the other hand, learned counsel for the State opposes and contends that the victim was minor and below 18 years of age at the time of incident which is proved by the School admission and discharge register Ex. P-9C and Tattima Ex.P-12C which contains the date of birth of the victim as 10.09.2008 and the victim has 9 also stated in her statement that her date of birth is 10.09.2008. Though her father and mother have stated that they do not remember the date of birth of the victim, but have specifically stated that she was around 13 years and 06 months and she was born in the year 2008. The school register is admissible piece of evidence to determine the age of the victim. Therefore there is no legality or infirmity in the findings of the learned trial court. The victim was abducted by both accused persons and kept away from the lawful guardianship. The accused Chiranjeet Dholai kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her without her consent. As such, the impugned judgment of conviction and sentence needs no interference. 17. We have heard the learned counsel for the parties and peruse the record with utmost circumstance. 18. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School admission and discharge register Ex.P-9C which is sought to be proved by PW-5 Sudhir Kumar Kanwar, the Headmaster of the concerned school, who has stated in his deposition that as per original Dakhal Kharij register related to the victim, which contains the details of the victim’s admission including her father’s name, date of birth etc., the date of admission of the victim is 05.07.2014 in Class – I and her date of birth is 10.09.2008 and the attested copy of the same 10 is Ex.P-9C. He further stated that at the time of admission of the victim, Tatimma Form (Ex.P-12) was filled as per the instructions of her mother and he has prepared a certified copy of the said Tatimma From and presented in the case, which is Ex.P-12C. In his cross-examination, this witness has admitted that while filing Tatimma Form, the mother of the victim did not bring the birth certificate or Kotwari register. On asking the witness on what basis the date of birth of the victim was written, he said that the mother of the victim had told it on the basis of the victim’s date of birth being written in Anganwadi. He also admitted that he did not see the documents related to Anganwadi. 19. Thus, it is clear that at the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her mother and on the oral information given by the mother of the victim the entry was made in the School admission and discharge register. Except dakhil kharij register (Ex.P-9C) and Tatimma Form (Ex.P-12C), no other evidence such as birth certificate, Kotwari register or ossification report are produced by the prosecution to prove the actual age 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 and discharge 11 register it would not be safe to hold that the victim was minor on the date of incident. 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 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. 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 : 12 “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 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." 13 23. 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 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 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. 14 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or 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 the matter 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 : 15 “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 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 16 certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence 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 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 and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim 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 victim was minor. 26. So far as the issue of forceful sexual intercourse by the appellant Chiranjeet Dhaolai upon the victim is concerned, we have carefully perused the statement of the victim recorded under Section 164 CrPC. In her 164 CrPC statement, the victim has stated that at the time of incident, she lived in village Katghari, police station Akaltara. She was studying in class VIII. Her mother, father had gone to Hyderabad for earning for the last 6 months. Her brothers Rohan and Ritesh Jogi and she live at home. When her mother, father were in Hyderabad, her father's mobile phone got damaged, so her mother and father talked to all of them from the mobile phone of Chiranjit Dholai who was working with her mother and father, after which Chiranjit Dholai used to call her again and again and used to say that he will marry her and keep her as his wife. Even after her refusal, 18 Chiranjit Dholai kept calling her. She told her friend Meena Mathur about the above incident, then Meena Mathur asked her for Chiranjit Dholai's mobile number and told her to give him a warning. She further stated that the incident is dated 30.12.2021. On the date of the incident, she went to the canal outside the village for a walk with her friend Meena Mathur at her behest. Then Chiranjit Dholai came there in an auto and her friend Meena Mathur and Chiranjit Dholai forcibly made her sit in the auto and Chiranjit Dholai took her to Baloda and her friend Meena Mathur returned to her home. Thereafter, Chiranjit Dholai took her from Baloda to Bilaspur by lying and from Bilaspur to Ranchi. After reaching Ranchi, Chiranjit Dholai took her by train to his village Bhagwanpur which is in West Bengal, took her there. He kept her at his house and at home, in front of the photo of God, he put sindoor on her maang and said that he had married her and will keep her with him. She stayed with Chiranjit Dolai in his village Bhagwanpur till 09.01.2022 and he continued to forcefully have wrong relations/physical relations with her against her will till the said date. 27. She also stated that accused’s brother, sister-in-law, mother and father live at his house. When Chiranjit's brother-in-law, who is in the Army Police, came to know about her, he warned and counselled Chiranjit's mother and father and informed and handed over her at Child Care Home Medhnipur. After which Child Care Home Medhnipur contacted Akaltara Police Station, 19 then the police from Akaltara Police Station, her father and sister and brother from Child Care Home Janjgir went to Medhnipur to pick her up, then they brought her back to their village Katghari. She want action against her friend Meena Mathur and Chiranjit Bolai. Chiranjit Bolai is also known as Joga in his village. Exactly, the same version has been stated by the victim, in her Court statement also. 28. In her cross-examination, on asking the victim whether she had told anyone about the incident before the date of recovery 03.02.2022, the witness said that she had not told. On asking the victim how many people were sitting in the bus while going from Baloda to Bilaspur, she said that 20-25 people were sitting. She admitted that there were 30-40 people sitting in the bus in which they went from Bilaspur to Ranchi. She further admitted that she went to the station of the accused's village by train from Ranchi. She also admitted that there was a ticket conductor at the railway station. This witness also admitted that accused Chiranjit has never came to their village. She further admitted that before the incident, accused Chiranjit had not met accused Meena Mathur in her presence. She voluntarily says that if he had met her then she do not have any information about it. Thus, from perusal of the aforesaid evidence, it is evident that there are lot of contradictions and omissions in her statement, which does not not inspires confidence and trustworthy. 20 29. In the instant case, the victim was medically examined by Dr.Lalita Toppo (PW-6), has medically examined the victim on dated 06.02.222 and after examination she has given her report Ex.P-13, according to which there was no external and internal injury mark over victim, her breast was at developing stage, axillary hairs were scanty, pubic hair were black, labia majora and labia minora in developing condition and hymen ruptured. As per her opinion, on the basis of said examination no definite opinion about immediate sexual intercourse with victim can be given. She has preserved and sealed a blue colour underwear of victim with white spot on inner side and two vaginal slides of victim and handed over to constable who had accompanied the victim for medical examination. Anil Tiwari PW-16 has taken into possession the said articles vide seizure memo Ex.P-28. Another Investigating Officer Inspector Lakhesh Kewat PW-13 on the basis of letter of Superintendent of Police, Janjgir Ex.P-23 has sent the said sealed parcel to FSL Bilaspur for chemical examination and after examination, FSL has given its report Ex.P- 25, according to which though semen and human sperm were found on underwear of victim but not on her vaginal slides. 30. In Dola @ Dolagobinda Pradhan (supra), the Hon’ble Supreme Court has held as under : 5. It is well settled law that if the version of the prosecutrix is believed, basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of 21 conviction. Corroboration is not a sine qua non for a conviction in a rape case. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. When a grown up and married woman gives evidence on oath in Court that she was raped, it is not the proper judicial approach to disbelieve her outright. 6. In this regard it would be useful to quote certain observations of this Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is observed that: “10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non- 22 permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the 23 incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. 11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex- offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World (Obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factors” does not render it unworthy of credence, as a 24 general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self- preservation. Or when the 'probabilities factor' is found to be out of tune”. (emphasis supplied) 7. In Sadashiv Ramrao Hadbe v. State of Maharashtra, [(2006) 10 SCC 92], this Court reiterated that the sole testimony of the prosecutrix could be relied upon if it inspires the confidence of the Court: “9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.” 8. However, as is also evident from the observations above, such reliance may be placed only if the testimony of the prosecutrix appears to be worthy of 25 credence. In this regard, it is also relevant to note the following observations of this Court in the case of Raju v. State of Madhya Pradesh, [(2008) 15 SCC 133], which read thus: “10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” Having due regard in our mind to the above-mentioned 26 settled position in law, we have assessed the entire material on record meticulously.” 31. Therefore, in the facts and circumstances of the case, particularly in the light of judgment passed by the Hon’ble Supreme Court in the matter of Dola @ Dolagobinda Pradhan (supra), it would not be safe for this Court to hold that the appellant Chiranjeet Dholai has committed rape upon victim, without corroboration from the medical evidence, rather it reflects from the evidence that the victim herself went along with him because while she has not made any complaint to anyone and has not raised any alarm while she was in travelling at different places by public bus and train, where many peoples were present. Had she been forcefully raped against her will or consent, she would definitely raise alarm or to make complaint to anyone, but she had never told anyone about commission of rape against her will till she was recovered from CWC ans since, it is held that the victim is not below the age of 18 years, she is capable to give her consent and therefore, it cannot be said that the appellant Chiranjeet Dholai procured a minor girl with the intention to illicit intercourse or committed rape upon her. 32. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the 27 Doctor’s evidence do not specify whether there were any signs of forcible sexual intercourse. 33. So far as the allegation against appellant Meena @ Chhoti Mathur is concerned, there is no evidence regarding her active participation in the commission of offence, the prosecution has not proved the case against her beyond all the reasonable doubt. 34. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against both the accused/appellants and the appellants are entitled for benefit of doubt. Having regard to the totality of the material on record and on facts and circumstances of this case, it is not possible for this Court to agree with the concurrent conclusions reached by the trial Court. 35. In the result, both the appeals are allowed. The impugned judgment of conviction and order of sentence dated 11.09.2023 is set aside. The appellants are acquitted from all the charges leveled against them. It is stated that appellant – Meena @ Chhoti Mathur is on bail. She is not required to surrender. Her bail bonds are cancelled and sureties stands discharged. 36. The appellant – Chiranjeet Dholai is in jail. He be released forthwith, if not required in any other case. 37. Keeping in view of the provisions of Section 437-A CrPC, the appellants are directed to furnish a personal bond in terms of from No.45 prescribed in the Code of Criminal Procedure for a 28 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 appellants on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 38. The Trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra