1 2025:CGHC:61707 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1259 of 2022 Judgment reserved on 25. 11.2025 Judgment Pronounced on 17.12.2025 Nanduram Dewangan @ Chotu S/o Ankalu Ram Dewangan Aged About 23 Years R/o Village Kanketara, Post Bori, P.S. Lalbagh, District : Rajnandgaon, Chhattisgarh --- Appellant versus State Of Chhattisgarh Through Arakshi Kendra Durg, District : Durg, Chhattisgarh --- Respondent {Cause title, as taken from Case Information System} For appellant : Mr. Uttam Pandey, Advocate For Respondent : Mr. Shailesh Kumar Puria, Panel Lawyer. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) CAV JUDGMENT 1. This criminal appeal has been preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (henceforth, Cr.P.C.) challenging judgment of conviction and order of sentence dated 24-6-2022 passed by the Upper Sessions Judge, 4th Fast Track Court, Durg (CG) (henceforth, referred to as ‘Special Court’) in Special Sessions Case (POCSO) No. 99/2018, whereby the learned Special Court, after holding the appellant guilty, convicted him under Section 376 of the IPC and Sections 5(l) and 6 of the POCSO Act and sentenced him in the following manner:- 2 Conviction under Section Jail Sentence Fine Sentence & default stipulation 6 of POCSO Act RI for 10 years Rs. 10,000/-, additional 1 years’ RI The appellant has also been convicted for offence under Section 376 of the IPC, but he has not been sentenced separately for the same in view of provision of Section 42 of the POCSO Act, as he has already been sentenced for the similar offence under Section 6 of the POCSO Act. 2. Case of the prosecution, in brief, is that, the minor victim/prosecutrix (PW 1) submitted a written complaint (Ex P-1), at the Padmanabhpur police station, Durg on 23.09.2018, stating that the accused/appellant Nanduram Dewangan, who studied at the Chhattisgarh Engineering College in her village, expressed his love for her and used to talk to her. On 21.05.2017, at about 2.00 a.m., while her parents were out, the accused came to her house and having trapped her in his love trap, forcibly established physical relation with her, he also made a video on his mobile phone, threatening to defame her. Distressed by the accused's threat to make the video viral, she informed her mother and maternal uncle about the incident. She, at that time, did not tell her family members due to fear of public shame. On the basis of above written complaint (Ex P-1) of the victim/prosecutrix (P.W. 1), an un-numbered FIR (Ex P-2) was registered at Police outpost-Padmanabhpur against the appellant under Sections 376, 506 B, IPC and Sections 5 and 6 of the POCSO Act and then numbered FIR was registered against the appellant at PS Padmanabhpur, Distt. Durg. During the investigation, statement of victim 3 under Section 164 of the Cr.P.C. was got recorded from concerned Magistrate. The victim was medically examined by Dr. Rimpal Bhatia (P.W. 8) and vide MLC report Ex. P-21 (repeat number), she did not find any injury on her person and could not opine about recent intercourse with the victim, she prepared her two vaginal slides and handed over the same for chemical examination, she also suggested urin pregnancy test of the victim. The accused was arrested as per arrest memo Ex. P-24. He was medically examined by Dr. R.K. Nayak (P.W. 5) and vide MLC report (Ex. P-16), he opined “positive” with regard to the fact that appellant is capable to perform sexual intercourse. The statements of the witnesses were recorded under Section 161 of the Cr.P.C. Site maps of the incident were prepared by the police and patwari. An underwear of the victim was seized from her vide seizure memo Ex.P-6 and Higher Secondary School certificate of the victim was seized vide seizure memo Ex. P-7. Dakhil Kharij register (Ex. P-19-C) of Subhash Vidya Mandir, Shankar Nagar, Durg pertaining to the date of birth of victim was seized vide seizure memo Ex. P-18 from Triveni Dewangan (P.W. 6) Principal of the School. A touch screen mobile was seized from the appellant vide seizure memo Ex. P-12 and an underwear was seized vide seizure memo Ex. P-13. The seized articles were sent for chemical examination to the FSL, in which, vide Ex. P-27, it was reported “negative”. The mobile phone seized from the appellant/accused was sent to Cyber Cell, Police Headquarters, Chhattisgarh for examination, in which, examination report was received vide Ex.D-2. After completing investigation, the charge sheet for the offence under Sections 376, 506-B read with Section 385 of the IPC and Section 5(l), 6 of the POCSO Act was filed in the Court of Fifth Upper Sessions Judge/FTC, Durg (henceforth referred to as “Special Court”) 4 3. Learned Special Court framed charges under Section 376 of the IPC, Section 66E of the Information Technology Act, 2000 (henceforth referred to as ‘IT Act’), Sections 506-II, 384 and 385 of the IPC and Sections 5(l) and 6 of the POCSO Act against the appellant/accused, who abjured the guilt and entered into trial. 4. So as to hold guilty the appellant, the prosecution has examined following witnesses and exhibited following documents:- WITNESSES PW 1 Victim P.W. 6 Triveni Dewangan PW 2 Savitri Devi Dewangan P.W. 7 Ravindra Swarnkar PW 3 Balkrishna Dewangan P.W. 8 Dr. Rimpal Bhatia P.W. 4 Komal Kumar Dewangan P.W. 9 Dr. A.K. Sahu P.W. 5 Dr. R.K. Nayak P.W. 10 Smt. Shail Sharma EXHIBITS 1. Ex. P-1 Complaint 15. Ex. P-15- C 10+2 certificate 2. Ex. P-2 FIR 16. Ex. P-16 MLC report of appellant 3. Ex. P-3 Police spot map 17. Ex. P-17 Report regarding underwear of appellant 4. Ex. P-4 Gum Insan Panchnama 18. Ex. P-18 Seizure memo 5. Ex. P-5 Consent of victim 19. Ex. P-19- C Dakhil Kharij register 6. Ex. P-6 Seizure memo 20. Ex. P-20 Arghai supurdnama 7 Ex. P-7 Seizure memo 21. Ex. P-21 Memo to Tahsildar 8. Ex. P-8 Patwari spot map 22. Ex. P-22 Report regarding panty of victim 9. Ex. P-9 Statement of victim u/S. 164, Cr.P.C. 23. Ex. P-21 (repeat) Medical report of victim 10 Ex. P-10 Order sheet dtd. 27-9- 24. Ex. P-23 Doctor’s opinion 5 2018 (repeat) regarding age of victim. 11. Ex. P-11 Police statement of victim 25. Ex. P-24 Arrest memo 12. Ex. P-12 Seizure memo 26. Ex. P-25 Seizure memo 13. Ex. P-13 Seizure memo 27. Ex. P-26 Receipt of FSL 14. Ex. P- 14-C Birth certificate of victim issued by Gram Panchayat, Dhanoura, District Durg 28. Ex. P-27. FSL report 5. Statement of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he denied all the incriminating circumstances appearing against him in prosecution’s evidence claiming his innocence and false implication. He has not examined any witness in his defence. However, he exhibited two documents i.e. police statement of maternal uncle of the victim as Ex. D-1 and report of Police Cyber Lab, Police Head quarter Ex. D-2 regarding his mobile. 6. Learned trial Court after appreciating the evidence adduced by the prosecution, acquitted accused of the offence under Section 66E of the IT Act and Sections 506-II, 384 and 385 of the IPC giving him benefit of doubt, but convicted him under Section 376 of the IPC and Section 5(l) and 6 of the POCSO Act and sentenced him as mentioned in opening paragraph of this judgment. Hence, this appeal. 7. Learned counsel appearing for the appellant/accused would submit that as per the case of the prosecution, the victim was minor at the time of incident and learned Special Court has held her age as 16 years, 8 months and 15 days on the date of incident i.e. 21-5-2017, on the basis of Dakhil Kharij register Ex. P-19-C and mark sheet of Class 10th of victim. It is 6 submitted that victim attended Class 1, first time in Subhash Vidhya Mandir, Shankar Nagar, Durg, which is a private school, but who had got her admitted in aforesaid school is contradictory from the deposition of mother and father of victim. It has not been proved that on the basis of which document, alleged date of birth i.e. 6-9-2000, has been recorded in the school record. It is next contended that Ex. P-19-C is said to be Dakhil Kharij register of Shubhash Vidya Mandir, Shankar Nagar, Durg, but Triveni Dewangan (P.W.6), Principal of the School, has admitted various discrepancies in aforesaid register. Therefore, date of birth recorded in Class 10th mark sheet cannot be relied upon. It is further argued that though, mark sheet of class 10th of victim Ex. P-15-C has been proved by the prosecution and in that mark sheet also, her aforesaid date of birth has been mentioned, but since it has not been proved that on the basis of which document, aforesaid date of birth was mentioned in private school, therefore, on the basis of the mark sheet of Class 10th of victim, her date of birth mentioned in it cannot be relied upon, whereas in ossification test report (Ex.P-23), Dr. A.K. Sahu (PW-9) has opined that, age of victim was 18 to 19 years. Thus, the prosecution has failed to prove beyond reasonable doubt that, the victim was minor on the date of incident. In this regard, he relied on the case of Suresh Vs. State of Uttar Pradesh and anr. [(2025) AIR SC 3570] and P. Yuvaprakash Vs. State, Rep. By Inspector of Police [(2023) AIR (SC) 3525]. Learned Counsel further submits that for the first time, alleged incident of sexual exploitation made by appellant with the victim / prosecutrix (PW-1) was allegedly established on 21.5.2017, but no report or complaint was made by the victim in this regard. It is further alleged that appellant had made a video of that physical relation in his mobile and by threatening the victim to make it viral, he repeatedly sexually exploited her, mobile of 7 appellant/accused was seized, but on examination of that mobile, no obscene video of victim was reported to be found vide Ex.D-2 by the Chhattisgarh Police Cyber Lab. The victim (PW-1) has also not stated in her deposition, as to when and where she was repeatedly sexually exploited by the appellant. It is further submitted that due to mental stress, she allegdly left her home on 18.09.2018 and went to Amritsar by train. Thereafter, to bring her back home, her maternal uncle (ekek) and his friend had gone to Delhi by Flight and by Train from Delhi to Amritsar, thereafter, they bring her back to Durg by Train, but no railway or flight ticket has been seized by the police. The medical report and FSL report also do not support the prosecution case, despite that learned Special Court has convicted the appellant for the offence of rape / aggravated penetrative sexual assault, which is completely perverse to the evidence available on record. Hence, he prayed that appeal may be allowed and the appellant may be acquitted of the alleged charges by setting aside the judgment passed by learned Special Court. 8. Per contra, learned counsel for the State while supporting the impugned judgment would submit that since appellant and victim belonged to same caste, therefore, he appellant trapped her in his love trap by managing her mobile phone number, thereafter, on 21.05.2017, he went in her house and had made physical relation with her by administering her cold drink mixing substance that causes unconsciousness to her. Appellant also made video of the same in his mobile and, thereafter, he sexually exploited her repeatedly by threatening to make the video viral. It is next contended that appellant deceived the victim in the garb of friendship by repeatedly sexually exploiting her, which has been proved by the prosecution witnesses, hence, 8 he prayed that the appeal is liable to be dismissed. 9. I have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and went through the record of the trial Court with utmost circumspection. 10. As per the case of prosecution, victim was minor on the date of incident i.e. on 21.5.2017. Learned Special Court has held victim minor i.e. 16 years, 8 months & 15 days on the date of incident on the basis of Dakhil Kharij Register (Ex.P-19c) and her mark-sheet of class 10th (Ex.P-15c). In both the documents, date of birth of victim has been mentioned as 6.9.2000. Dakhil Kharij Register (Ex.P-19c) was seized by Smt. Shail Sharma (PW-10), who is Investigating Officer of the instant case. Triveni Dewangan (PW-6) is Principal of Subhash Vidya Mandir, Shankar Nagar, Durg. As per her deposition and entry of Ex.P-19c, victim took admission in Class I in aforesaid school on 30.06.2006. She has admitted in her cross-examination that it has not been mentioned in it as to on which basis, said date of birth was mentioned. 11. Victim (PW-1), her mother (PW-2) and her father (PW-3) have stated that date of birth of victim is 6.9.2000. Though, who got admitted victim in the School is contradictory from deposition of aforesaid witnesses, as mother of victim (PW-2) has stated that her mother (maternal grandmother of victim) had got admitted her in school, whereas her father (PW-3) has stated that her maternal grandfather ( ukuk ) had got admitted her in the school. The best witness to know the date of birth of children are his / her mother and father. If they are educated persons, then, date of birth told by them ought not disbelieved, unless it was rebutted by concrete evidence. In the instant case, mother of victim (PW-2) has not only stated date of birth of victim, who 9 is her eldest child, but also stated date of birth of her three children. She herself is an educated lady studied up to class 11th (paragraph 18 of her cross-examination), therefore, date of birth of victim told by her parents cannot be discarded, particularly, when their statements also get support from Dakhil Kharij Register Ex.P-19c and mark-sheet of class 10th of the victim. 12. Ex.P-14c is said to be birth certificate of victim issued by Sarpach of Gram Panchayat Ghanoura, District Durg, but Sarpanch of Gram Panchayat does not have authority under the law to issue birth certificate of any person, hence, this document cannot be relied upon. 13. Ex.P-15c is photo-copy of mark-sheet of High School Certificate Examination (10+2), 2016 i.e. class 10th of victim, issued by Chhattisgarh Board of Secondary Education, Raipur. In this document also, her date of birth has been mentioned as 06.09.2000, as has been mentioned in Dakhil Kharij Register Ex.P-19c and deposed also by victim and her parents. 14. Learned counsel for the appellant had argued that since Subhash Vidya Mandir, Shankar Nagar, Durg is a private School, therefore, date of birth of victim mentioned in Dakhil Kharij Register Ex.P-19c cannot be relied upon, as neither aforesaid school was a Government School nor entry was made by a Public Officer, therefore, neither that document can be treated as public document nor date of birth mentioned in mark-sheet of class 10th Ex. P-15c can be relied upon. In this regard, he relied in the case Suresh vs. State of Uttar Pradesh and another 1 , but this contention of learned counsel for the appellant is not found to be sustainable. Though, aforesaid school seems to be private School, but date of birth of victim i.e. 6.9.2000 1 (2025) AIR (SC) 3570 10 mentioned in Dakhil Kharij Register Ex.P-19c is also mentioned in her mark sheet of class 10th issued by the Chhattisgarh Board of Secondary Education, Raipur. 15. It has been settled by the Apex Court that to determine the age of juvenile (child / victim) provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth, JJ Act, 2015) is applicable, as provided in Section 34 (1) of the POCSO Act, 2012. 16. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act becomes relevant, and applicable, which is reproduced below :- “ 94. Presumption and determination of age - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; 1. (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical 11 age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.” 17. Hon'ble Supreme Court in the case of P. Yuvaprakash (supra) while considering the issue of determination of age of victim / juvenile / child, provisions contained in Section 94 of the JJ Act and also considering the various judgments in paragraphs 13 to 16, has held as under :- “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: “(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical 12 age determination test conducted on the orders of the Committee or the Board”. 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 13 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.,2 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 2 (2022) 8 SCC 602 14 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.3 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 3 (2019) 12 SCC 370 15 matriculation or equivalent certificate are placed in the same category.” 18. Recently, Hon'ble Supreme Court while emphasizing the aforesaid provision in the cases of Omprakash Vs. State of Union of India (Criminal Appeal No. 4229 of 2024, decided on 8 th January, 2025 ) and Rajni Vs. State of Uttar Pradesh 4 has held that age of the minor should be determined according to Section 94 of the JJ Act, 2015, which is a reiteration of Rule 12 of the Juvenile Justice (Care & Protection of Children), Rules, 2007, which mandates the explicit outline, a sequence for determining a person’s age i.e. date of birth certificate from a School, or matriculation / equivalent certificate from the concerned examination Board, if available; and in the absence thereof; a birth certificate given by a Corporation or Municipal Authority or a Panchayat. And only in the absence of above document, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. 19. Thus, from bare perusal of aforesaid provisions of Section 94 of the JJ Act and judgments rendered by the Apex Court in afore-cited cases, it is evident that, to determine age of victim /juvenile, clause (i) of Section 94 (2) of JJ Act places, the date of birth certificate from the School and matriculation or equivalent certificate from the concerned Examination Board in the same category, namely (i) above. In the absence thereof, category (ii) can be opted. It has further been clarified that only in the absence of (i) (ii), age determination by means of medical analysis can be considered. Neither aforesaid provision nor judgment of the Apex Court provides that if victim / juvenile, who has studied in private school and while studying in the same school, matriculation or equivalent certificate is issued to her / him from 4 2025 LiveLaw (SC) 602 16 concerned Examination Board, then date of birth mentioned in it will not be relied upon. Rather in aforesaid provision, it has been provided that date of birth mentioned in matriculation certificate or equivalent certificate issued by concerned Examination Board shall be undertaken to determine age of such child. Therefore, contention raised by learned counsel for the appellant that date of birth mentioned in mark-sheet of class 10th (Ex.P-15c) of victim cannot be taken as her actual date of birth because it was recorded on the basis of school record of private School, is not sustainable. 20. Though, Dr. A.K. Sahu (PW-9), who conducted ossification test of victim on 25.9.2018, has opined vide Ex.P-23 that on the date of aforesaid ossification test; age of victim was between 18-19 years, but this ossification test was conducted after more than one year & 3 months from the date of first incident i.e. on 21.5.2017. Further, when there is better documentary evidence of higher category, as has been provided in Section 94 (2) (i) of JJ Act and upheld by Apex Court in afore-cited cases, then ossification test report (Ex. P-23) renders useless to determine the age of victim. 21. In view of above discussion, it is found that learned Special Court has not committed any error in holding that victim was minor on the date of first incident i.e. on 21.05.2017 and her age was 16 years, 8 months & 15 days. 22. From perusal of deposition of victim, it is very well proved that, there was love affair between victim and the appellant. She has stated in her deposition that on 21.05.2017 in the night at about 2 O'clock when her father and mother were not in the house, appellant came outside her house and asked her to open the door, else he will wake up all the persons by shouting, therefore, under the fear & pressure, she opened the door of her house, thereafter, they talked about 10 – 15 minutes in a room, where she 17 consumed cold drink brought by the appellant and get fainted, taking undue advantage of the same, appellant sexually exploited her, which she was not aware because she had fainted. Thereafter, appellant went from there leaving her in that condition, when she regains consciousness, then realize that she has been sexually abused by the appellant/accused. She has further stated that on being asked, appellant also told her about making physical relation with her by saying that he like her, love her and also marry her. She has further stated that appellant had made video of that physical relation and by threatening her to make the video viral, repeatedly sexually exploited her without her consent for one year. She has further stated that on 15.9.2018, when she was going to college, then appellant restrained her and snatched her phone, which was returned by him on being called by her family members, because of such conduct & behaviour of appellant, she got fed-up, therefore, on 18.9.2018. she went to Raipur by bus and had gone to Amritsar by Train from where her maternal uncle and his friend brought her back to home. 23. Aforesaid deposition of victim has also been supported by her mother (PW-2), her father (PW-3), maternal uncle (PW-4) to whom victim narrated the alleged incident of her sexual exploitation by the appellant. 24. Since the victim had left home without informing her family members and despite being searched, they did not find her , therefore, a missing report of victim was lodged on 18.9.2018 and after returning on 22.9.2018, written complaint (Ex.P-1) was lodged against the appellant by the victim. Based on which, FIR (Ex.P-2) was registered in police outpost Padmanabhpur, District Durg on 23.9.2018, but prior to that recovery memo (Ex.P-4) of victim was prepared by the police, which has been proved by victim (PW-1), her mother 18 (PW-2) and her father (PW-3) and Investigating Officer (PW-10). 25. After recovery of the victim, her medical examination was conducted by Dr. Rimple Bhatia (PW-8), in which, vide MLC report {P-21 (repeat number)}, she opined that secondary sexual character of victim was well developed, hymen was absent, no external or internal injury was found on her person, therefore, she stated that no definite can be given about recent sexual intercourse with the victim. She prepared two vaginal slides of victim and handed over the same to concerned constable for its chemical examination. She also suggested for urine pregnancy test of victim, but no such test report of victim has been filed / proved by the prosecution. 26. Vide seizure memo (Ex.P-6) underwear (panty) of victim was seized, which has been proved by the victim, her mother and Investigating Officer (PW-10). Vaginal slide of the victim collected by the doctor was also seized vide seizure memo (Ex.P-25). Medical examination of appellant was conducted by the Dr. R.K.Nayak (PW-5), in which, vide MLC report (Ex.P- 16), he opined that the appellant was capable to perform sexual intercourse. Underwear of appellant was also seized vide seizure memo (Ex.P-13). 27. Seized vaginal slide of victim, her panty and underwear of appellant were sent for chemical examination, in which vide Ex.P-27, FSL Raipur reported that no semen and human spermatozoa was found in aforesaid articles. Thus, the medical report of the victim and FSL report do not support the case of prosecution. 28. Thus, whole case of prosecution rests upon the deposition of victim (PW-1), her mother (PW-2), her father (PW-3) and maternal uncle (PW-4), but PW-2, PW-3 & PW-4 are only hearsay witness pertaining to alleged 19 sexual exploitation, to whom the victim told about the said facts. Therefore, “moot point to be considered by this Court is whether victim can be treated as ‘sterling witness’ and only on the basis of her evidence, conviction of appellant can be sustained” ? 29. In the case of Ganesan vs. State Represented by its Inspector of Police 5 , Hon'ble Supreme Court while considering various judgments rendered by it has held that in the cases involving sexual offences, only on the basis of testimony of the prosecutrix, if found to be worthy of credence and reliable, the court may convict the accused without corroboration. 30. In the matter of Nirmala Prem Kumar & another Vs. State represented by police6, their Lordships of the Supreme Court while reiterating aforesaid dictum has held in paragraph 15 as under :- “15. What flows from the aforesaid decision is that in cases where witnesses are neither wholly reliable nor 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, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While the victim’s testimony is usually enough for sexual offence cases, an unreliable and insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.” 5 2020 (10) SCC 573 6 Criminal Appeal No. 1098 of 2024 20 31. Keeping in mind aforesaid law laid down by Apex Court, when deposition victim is put to the test of evidence, then it is found that there are various material omissions and improbabilities appears from her deposition and her statements recorded under Sections 161 & 164 of Cr.P.C.. 32. As per deposition of the victim, appellant first time sexually exploited her on 21.05.2017 by coming to her house, get the door opened under threat and sexually exploited her by administering her Sprite cold drink brought by him, after which she fainted, but she has not stated this fact in written complaint (Ex.P-1) made by her, whereas she herself wrote written complaint (Ex.P-1), that too, in protection of her parents and other family members. Though, aforesaid fact was stated by her in her police statement recorded on next date i.e. 24.09.2018 and in 164 statement (Ex.P-9) recorded on 27.9.2018. She has stated in her statement recorded under Section 164 Cr.P.C. (Ex.P-9), when she refused to have cold drink, then appellant forcefully put bottle in her mouth, but in her evidence she has stated that she herself had opened the bottle of cold drink and drunk the same. She has not stated in her deposition that appellant forcefully administered her said cold drink. 33. Victim has stated in her deposition as well as other statements also that while making physical relation for the first time on 21.5.2017, appellant had made video in his mobile and by threatening her to make the video viral, he repeatedly sexually exploited her for one year. 34. One touch screen mobile MI golden colour having SIM No. 899111000006580-16051 was seized from the appellant vide seizure memo (Ex.P-12) by the Investigating Officer (PW-10), which was sent for its examination to Cyber Cell, Police Headquarter, Atal Nagar, Raipur. 21 35. The Cyber Lab report (Ex.D-2) of aforesaid mobile has not been exhibited /proved by the prosecution, rather it has been exhibited by the appellant in cross-examination of the Investigating Officer (PW-10). As per this report, on being retrieved data of call log, SMS, Image, audio, video, joint photo of victim and appellant were found, but no obscene video of the victim was found. The victim has also not stated that she had ever seen any such video in mobile phone of the appellant. 36. Investigating Officer (PW-10) has admitted the suggestion of learned defence counsel in paragraph 18 that she had not seen obscene video in the seized mobile of the appellant, other witnesses of prosecution have also not stated that they had seen such obscene video of the appellant and victim in his mobile. Thus, there is no evidence in support of statement of victim that appellant had made video of alleged physical relation in his mobile, hence base of alleged threat (to make alleged obscene video viral) to commit repeated sexual exploitation is not found to be established by the prosecution. The victim has also not stated in her evidence about the date, place and circumstances of alleged repeated physical relation and as to when last physical relation was made by the appellant with her. 37. The victim has stated in her statement (Ex.P-9) recorded under Section 164 of the Cr.P.C. that last time appellant came in her house on 15.9.2018 for making forceful relation, which was objected by her, then appellant asked her to choose cutting her hand or enduring the pain of having sex, then she cut her left wrist with a blade, despite that appellant forced her. But, these material facts have neither been stated by her in her written complaint (Ex.P-1) or police statement (Ex.P-11) nor in her evidence. Her parents have also not stated that on 15.9.2018, they had seen any 22 injury on left wrist of the victim. Rather, as per her evidence on 15.9.2018 when she was going to college, then appellant had snatched her phone, but as per her statement u/s 164 Cr.P.C. that incident had occurred on 17.9.2018. 38. The victim (PW-1) has further stated in her statement (Ex.P-9) recorded under Section 164 Cr.P.C. that while forcing her to have sex, appellant also put his penis in her mouth & on being refused, he abused her with filthy words like, "You bastard, if you don't do this I will tear your vagina and anus". She has further stated that during sex, appellant used to put oil and shampoo in her vagina and anus. But aforesaid material facts have also not been stated by her neither in her police statement (Ex.P-11) nor her evidence. 39. The victim (PW-1) has admitted in her cross-examination that her uncles live with their family in their house, which is adjacent to her house. She has also admitted in para 44 of her cross examination that she knowingly called the appellant in night, so that, her neighbours and uncles would sleep so that nobody could know about the aforesaid fact. She has also admitted the suggestion of learned defence counsel in paragraph 42 that once her mother had scolded the appellant and restrained him to talk with the victim, despite that they used to talk over phone. Though, mother of victim (PW-1) has stated that she was not aware about the friendship / interaction between them, but aforesaid admission of victim show that her mother (PW-2) was very well aware regarding conversation between them. 40. As per the evidence of victim (PW-1) when appellant first time allegedly made physical relation with her on 21.5.2017 in the night, at that time, her father- mother were not present in the house, rather only her 23 grandfather, grandmother and younger sister were sleeping in the house. Thus, it is evident that various family members lived in her house but she has not stated as to how & under which circumstances every time appellant entered in her house, that too, for more than a year. It is a common phenomenon that when there is a young daughter (s) living in the house, the parents / elderly parents take more care about them, but parents of victim have not stated in their deposition that they had ever seen or suspected that appellant used to come in their house at night, which they would have known, if it would have happened. 41. The victim was developed young girl and the appellant had allegedly made physical relation with her for long time, but despite giving suggestion by Dr. Rimple Bhatia (PW-8) for pregnancy test of victim, it was not done, as no such report has been filed / proved by the prosecution, which ought to have been done and proved to find out the truth of the allegation, which go against the prosecution. 42. The victim has stated in her deposition that because of her alleged sexual exploitation by appellant, she had fed-up, therefore, she had left the home on 18.9.2018 and went to Amritsar by train from where her maternal uncle (PW-4) and his friend brought her back by train. She has further stated that she had tried to commit suicide but because of rush in train, she could not succeed. If a young girl was under such mental stress and depression, then it would reflect from her behaviour, to which parents, particularly mother / grandmother could not be supposed to be oblivious or unaware, but mother and father of victim had not stated in their deposition that they had ever seen or feel that the victim was in such mental stress or depression. 24 43. As per evidence of victim and her maternal uncle (PW-4) under alleged stress / depression on 18.9.2018 the victim had gone to Amritsar by train from Raipur and to bring her back PW-4 and his friend had gone to Delhi by flight from Raipur went Amritsar by train from Delhi and they returned alongwith victim to Durg by train. Victim has also stated in her evidence that she had stayed in the night of 21.9.2018 in a Hotel at Amritsar. But to prove aforesaid fact neither train or flight ticket have been seized by the police nor receipt or register of alleged hotel has been seized. 44. If the events leading up to the trip to Amritsar of the prosecution witnesses are disregarded, the only remaining fact is that the appellant / accused sexually exploited the victim for the first time 1 year and 4 months ago from the date of FIR and continued to do so for a year, but the report was lodged more than a year later from the date of first incident. However, there is no other evidence to corroborate the victim’s deposition, as medical report and FSL report is not supportive to her evidence and her evidence suffers from gross / material omissions and improbabilities. 45. Having considered the alleged sexual exploitation of the victim by the appellant for more than one year, that too seems to be in her house, the grandfather, grandmother and younger sister could have been the best witnesses, but they have not been examined by the prosecution. No doubt, victim of such case inform about the incident to her parents, as such, parents are important witnesses, as has been held by the Apex Court in the case of Alamelu and another Vs. State represented by Inspector of Police 7 , which has been referred by learned Special Court also, but if the statement of the victim is not found to be reliable and clinching, then the evidence of parents based on hearsay cannot be considered as substantive piece of 7 AIR 2011 SC 715 25 evidence. 46. Thus, since various statements and deposition / evidence of the victim suffers from material discrepancies, omissions and improbabilities, her evidence is not found to be consistent from beginning to end. As such, her evidence is not found to be worthy of credence and reliable. Hence, conviction of appellant cannot be based on sole testimony of the victim / prosecutrix. 47. In view of foregoing discussion, Criminal Appeal is allowed. Impugned judgment of conviction and order of sentence passed by learned Special Court is set aside and the appellant is acquitted of the charges under Section 376 of the IPC and Section 5(l) & 6 of the POCSO Act. 48. The appellant is reported to be on bail. His bail bonds shall remain in force for a further period of six months in view of the provisions contained in Section 481 of the BNSS, 2023. 49. Let copy of this judgment along with record of the court below be sent back forthwith for compliance and needful. Sd/- (Naresh Kumar Chandravanshi) Judge AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.12.19 11:53:38 +0530