1 CRA No. 725 of 2016 2025:CGHC:49823 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 725 of 2016 Biju Mangesh S/o Dwarika Mangesh Aged About 24 Years R/o Village - Risda, P.S. And City Kotwali, Baloda - Bazar, District - Baloda - Bazar - Bhatapara Chhattisgarh , Chhattisgarh ... Appellant versus State Of Chhattisgarh Through - S. H. O. - City - Kotwali, Baloda - Bazar , District - Baloda - Bazar - Bhatapara Chhattisgarh , Chhattisgarh ... Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. Hemant Gupta, Advocate For Respondent(s) : Mr. Shailendra Sharma and Ms. Isha Jajodia, Panel Lawyers Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 07/10/2025 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 27.04.2016 passed in Special Sessions Trial No. 60/2015 by the learned Second Additional Sessions Judge, Balodabazar, C.G., whereby the appellant has been convicted and sentenced as under:- SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.10.10 10:58:38 +0530 2 CRA No. 725 of 2016 Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 03 years and fine of Rs. 1,000/- with default stipulation. U/s 366 of the IPC Rigorous imprisonment for 07 years and fine of Rs. 2,000/- with default stipulation. U/s 376(1) of I.P.C. & Sec. 6 of POCSO, but since the among above stated offences & in accordance with the provisions of section 42 POCSO of heavier degree of crime the appellant was sentenced with Sec. 6 of POCSO Act. Rigorous imprisonment for 10 years and fine of Rs. 3,000/- with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that on 11.02.2015, the complainant/ father of the victim along with his nephew Chandrakant Kurre, appeared before the City Kotwali police station and gave oral information that on 10.02.2015 at 10:00 pm, when everyone had gone to sleep after dinner, when he woke up, he found that his daughter/ victim was not on bed. They searched for her in the neighbourhood, among family members and relatives, but she was not found. On the basis of which, a missing report of the prosecutrix was registered at the City Kotwali police station, Balodabazar. Based on the said report, a First Information Report (FIR) was registered under Section 363 of IPC against unknown person. During investigation, on 30.08.2015, the prosecutrix was 3 CRA No. 725 of 2016 recovered from the house of accused Biju Mangesh in village Risda, and a recovery memo (Exhibit P-1) was prepared. 3. During investigation, Spot Map was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P/11C) was seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. In order to bring home the offence, the prosecution has examined 13 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 27.04.2016 convicted and sentenced the appellant as mentioned aforesaid. Hence, this appeal. 6. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. Learned counsel would 4 CRA No. 725 of 2016 submit that the prosecution has failed to prove the fact that the prosecutrix was below 18 years of age at the time of incident. The trial court failed to properly evaluate key evidence, including doubts regarding the prosecutrix’s age, her voluntary relationship and elopement with the appellant, and her own statements indicating consent and absence of coercion. There is lack of medical corroboration, and indications of a marital relationship, thereby wrongly applying provisions of the POCSO Act and Section 376 IPC. Hence, without there being any cogent evidence linking the appellant to the alleged incident, the conviction of the appellant is bad in the eyes of law. 7. Learned counsel appearing for the State opposed the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for the offences under Sections 363 & 366 of the IPC. 10. The appellant has been convicted for offence of 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 5 CRA No. 725 of 2016 kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- “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.” 11. 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 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. 6 CRA No. 725 of 2016 12. 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, it is evident from the statement of the victim (PW/4) recorded before the trial Court wherein it is clear that the prosecutrix was not kidnapped by the accused. As such, there is no evidence on record that at any point of time, the appellant solicited or lured or induced or enticed the victim to go with him. 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. Similarly, there is no evidence of enticing the minor victim by the appellant. Thus, the trial Court is absolutely unjustified in convicting the appellant for the offences punishable under Sections 363 & 366 of the IPC. 13. The second question arises before this Court whether the victim was minor on the date of incident or not?. 14. The Victim (PW/4) in her deposition has stated that she was 16 years old, however, in her cross-examination she stated that today she could not tell her date of birth, she only stated that she was one year younger to her brother Sameer. Father (PW/1) and mother (PW/2) of the victim stated in their cross-examination that they did not remember what was the age of their daughter at the time of incident. Her father has stated that he is 7 CRA No. 725 of 2016 unable to specify the exact date, month, and year of birth of any of his children. He also stated that he cannot remember the exact date when his daughter was admitted to school or the date of birth recorded at that time. He further admitted that he does not recall how he noted the date of birth of his daughter during her admission. 15. PW/9 – Ramji Gautma, Head Master posted at the Primary School, Risda, District Balodabazar stated that he had brought the admission and dismissal register of the school wherein the date of birth of the victim was recorded as 2nd July, 1998 and the admission date was recorded as 2nd July 2004 into Class 1. This register was marked as Exhibit P11, and the attested copy as Exhibit P-11C. During cross-examination, he admitted that he had not entered victim’s admission in the register and could not say on what basis her date of birth had been recorded. He explained that his admission is recorded at the time of issuing the Transfer Certificate (TC). He further stated that no documents had been seized from him by the police. Even there is no documentary evidence attested with the Admission Register. 16. Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij Register, but on what basis, the entry was made, is not mentioned in the register, whatsoever mentioned in the register is ordeal in nature. Even the author of the entry made in the register is also not examined. 17. 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 8 CRA No. 725 of 2016 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 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 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 9 CRA No. 725 of 2016 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 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 10 CRA No. 725 of 2016 (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." 18. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not 11 CRA No. 725 of 2016 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 hyper technical 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 12 CRA No. 725 of 2016 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." 19. 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 13 CRA No. 725 of 2016 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 14 CRA No. 725 of 2016 equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were 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 15 CRA No. 725 of 2016 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." 20. Reverting to the facts of the present case and considering the well settled law laid down by the Supreme Court in the above mentioned decisions it is quite vivid that the prosecution failed to establish that on the date of incident, the victim was less than 18 years of age. 21. Very recently in the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, the Supreme Court has held that he victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. Relevant para of the said judgment states as under:- “16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence under Sections 363 and 366 IPC would still not be made out. 17. This Court in the case of S. Vardarajan v. State of Madras, reported in 1964 SCC OnLine SC 36 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus: “7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an 16 CRA No. 725 of 2016 essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man 17 CRA No. 725 of 2016 and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….” 18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her. 19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun.” 22. Thus, applying the well settled principles of law laid down by the Hon’ble Supreme Court in the matter of Tilku Alias Tilak Singh (supra) and from the evidence available on record with regard to the age of the 18 CRA No. 725 of 2016 victim, it is held reliable that the victim was major aged about between 16-18 years at the time of incident according to the principles of the Supreme Court. Further it is also stated in the above judgment that the victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. 23. The next question for consideration would be whether the appellant has committed rape upon her or not and commit the said heinous offence punishable under Section 6 of the POCSO Act. 24. It is reflected from the testimony of the victim that the allegation of rape has not been conclusively proved. During her deposition, the victim stated that after the accused allegedly made her consume some intoxicating substance, she became unconscious and does not know what happened thereafter or who committed any act with her. She has specifically admitted in her cross-examination that she is unaware of what occurred when she was unconscious and that she cannot state with certainty that the accused committed any sexual act against her. Furthermore, she has admitted such crucial facts as the accused forcing her to wear a jaimala, giving her intoxicants, committing repeated acts of sexual intercourse, and threatening her parents, were not mentioned in her statement to the police. These facts she only stated in the Court statement, which creates doubts regarding the veracity and reliability of her testimony, suggesting that these additions may be an afterthought or improvements introduced at a later stage, thereby decreasing the overall 19 CRA No. 725 of 2016 credibility of her version of events. 25. 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 sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient 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 sufficient 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 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. 20 CRA No. 725 of 2016 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 testimony is usually enough for sexual offence ases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.” 26. Her testimony also reveals several contradictions and omissions when compared with her earlier statements recorded under Sections 161 and 164 of Cr.P.C. The victim even admitted that she does not remember her 21 CRA No. 725 of 2016 exact age and could not produce any document to substantiate her claim of being a minor at the time of the alleged incident. She further stated that on the night of the incident, when the accused called her on the mobile phone, she did not inform her parents or sister about it. She voluntarily added that the accused had threatened to kill her if she disclosed the matter. She further admitted that while travelling to Raipur by bus, there were several passengers on board, and when they reached at Raipur, many people, including traffic police personnel, were present there. However, she did not inform anyone that she was being taken forcibly by the accused. This conduct of the victim, showing that she had multiple opportunities to raise an alarm or seek help but did not do so, further weakens the prosecution version and casts serious doubt on the truthfulness of her allegations. These inconsistencies, omissions, and her clear admission that she does not know what transpired after she lost consciousness, the prosecution version regarding the commission of rape remains doubtful. Therefore, it is reflected from the statement of the victim herself that the alleged act of rape has not been established beyond reasonable doubt. 27. Dr. Anita Verma (PW/12) who conducted the medical examination of the victim, stated in her statement that after examining the victim, it was found that there were no signs of recent sexual intercourse. The hymen was found to be old and healed, indicating that the rupture was not recent and could have occurred much earlier. The doctor further clarified that the victim’s physical condition was normal; she was conscious, and 22 CRA No. 725 of 2016 no external or internal injuries were found on any part of her body, including her private parts. There were also no marks of struggle or resistance, which are usually expected in cases of forcible sexual assault. She also confirmed that no fresh signs of intercourse were found at the time of examination. 28. Perusal of the above statements and particularly looking to the fact narrated and the evidence adduced by the doctor, it is evident that there is no conclusive proof of recent rape or forcible sexual intercourse with the victim. Hence the prosecution would not prove its case firmly that the victim has been assaulted by aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. 29. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has committed any offence of rape with the victim, rather it reflects from the evidence that the victim herself had made consensual sexual intercourse with the appellant owing to which she had also got pregnant. Thus, it cannot be said that the appellant committed the offence. 30. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot 23 CRA No. 725 of 2016 be convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 31. For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim and commit penetrative sexual assault with her and from the evidence of the victim, the same creates doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, I am of the view that the appellant is entitled to be acquitted. 32. The accused is acquitted of the charges for which he was tried. 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. 33. 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 S. Bhilwar