1 2025:CGHC:54676 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1869 of 2023 Komal Kanthle S/o Shri Rajesh Kanthle Aged About 19 Years R/o Village Nagdha Chowki Maro P.S. Nandghat, District : Bemetara, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through- District Magistrate, Bemetara, District – Bemetara, Chhattisgarh ... Respondent For Appellant : Ms. Sareena Khan, Advocate For Respondent/State : Ms. Smriti Shrivastava, Panel Lawyer. For Objector : Mr. Narendra Kumar Guleri, Advocate. Hon'ble Shri Ramesh Sinha , Chief Justice Order on Board 10.11.2025 1. Heard on IA No.02/2025, which is an application for changing the counsel. 2. On due consideration, IA No.02/2025 is allowed, and Ms. Sareena Khan, Advocate is ready to argue the matter on merits, as earlier counsel for the appellant Mr. Dheerendra Pandey, Advocate who is present with her, has no objection to it. RAJSHEKHAR SONI Digitally signed by RAJSHEKHAR SONI 2 3. The criminal appeal arises out of the judgment of conviction and order of sentence dated 29.08.2023 passed by learned Additional Sessions Judge, Fast Track Special Court (POCSO Act), Bemetara, District – Bemetara (C.G.) in Sessions Trial No. 21/2023 whereby the appellant has been convicted and sentenced in the following manner: Sentence Conviction Under Section 450 of the Indian Penal Code (IPC) Rigorous Imprisonment for 10 years with fine amount of Rs. 1,000/-, in default of payment of fine further RI for 02 months. Under Section 4 of Protection of Children from Sexual Offences Act, 2012 (In short, ‘POCSO Act’). Rigorous Imprisonment for 10 years with fine amount of Rs. 1,000/-, in default of payment of fine further RI for 02 months. Under Section 354 of the IPC. Rigorous Imprisonment for 01 years with fine amount of Rs. 500/-, in default of payment of fine further RI for 02 months. Under Section 354(B) of the IPC. Rigorous Imprisonment for 03 years with fine amount of Rs. 500/-, in default of payment of fine further RI for 02 months. Under Section 506 part-II of the IPC. Rigorous Imprisonment for 01 years with fine amount of Rs. 500/-, in default of payment of fine further RI for 02 months. 3 Under Section 323 of the IPC. Rigorous Imprisonment for 01 years. Under Section 8 of POCSO Act. Rigorous Imprisonment for 03 years with fine amount of Rs. 500/-, in default of payment of fine further RI for 02 months. (All the sentences will run concurrently) 4. The prosecution story, in brief, is that The prosecution case, in brief, is that the victim (PW-5) herself appeared at Police Outpost Maro, Police Station Nandghat, on 08-05-2023 and lodged a written report stating that on 29-30-12-2022, a Panthi cultural function was being held in their village. She was alone at home as her mother had gone to watch the function. At around 1–2 a.m., when she woke up to use the bathroom, Komal Kanthale, a resident of her village, came there. Knowing fully well that she was a minor, he forcibly gagged her mouth, took her inside her house, and raped her. He threatened to kill her if she disclosed the incident to anyone and left. Out of fear and social shame, she did not inform anyone at that time. 5. On 06-05-2023, when she was again alone at home (her mother having gone to Raipur for daily wage work), Komal Kanthale came to her house around 12–1 p.m., tried to remove her clothes, pressed her breasts, and attempted to forcibly outrage her modesty. When she screamed, Komal Kanthale fled from the 4 house. As she was going to inform her grandfather about the incident, he intercepted her on the way, threatened to kill her if she told anyone, and assaulted her with a stick. This assault was witnessed by village residents Manish Banjare and Rajendra Verma. She then informed her mother over phone about the incident and, after informing the Sarpanch and Kotwar, lodged the report. On the basis of the written report (Ex.P-12), Crime No. 108/2023 was registered at Police Station Nandghat for offences under Sections 376, 354, 506, 323 of the IPC and Sections 4 & 6 of the POCSO Act, and investigation was undertaken. 6. Investigating Officer Anupama Dubey (PW-13) recorded the FIR (Ex.P-13) on the basis of the victim’s report and recorded the statements of the victim according to her narration. With the consent of the victim and her mother, requisitions (Ex.P-22 & P- 24) were prepared, and she was sent to CHC Nawagarh for medical examination. The mark sheet of the victim, showing she was a student of Class-VIII, was seized. 7. Another Investigating Officer, R.K. Kashyap (PW-11), prepared the spot map (Ex.P-9) and sent a requisition (Ex.P-5) to the Tehsildar for preparing the Patwari Spot Map of the place of occurrence. A requisition (Ex.P-28) was also sent to the Child Welfare Committee for recording the victim’s statement. The accused was sent for potency test to CHC Nawagarh under requisition Ex.P- 20A. The accused was arrested as per Ex.P-32, and intimation of 5 his arrest was given to his family members under Ex.P-33. For recording the statement of the victim under Section 164 CrPC, a requisition (Ex.P-34) was sent to the concerned trial Court. 8. To verify the date of birth of the victim, the relevant school records were seized from the concerned teacher under seizure memo Ex.P-2. The victim’s vaginal smear and vaginal swab were sent for chemical examination to the Forensic Science Laboratory, Raipur, under Ex.P-35. During investigation, sufficient evidence was found against the accused, and therefore, a final charge- sheet was filed for offences under Sections 376, 450, 354, 354(B), 506, 323 of the IPC and Sections 4 & 6 of the POCSO Act before the competent Court for trial. 9. On perusal of the presented charge-sheet and the attached documents, prima facie it appeared that the accused had committed the offence under Sections 376, 450, 354, 354(B), 506, 323 of the IPC and Sections 4 & 6 of the POCSO Act, hence charges were framed under the said Sections. On being read out and explained the charges to the accused, the accused abjured his guilt and pleaded trial, saying that he was innocent. 10. In order to establish the charge against the appellant, the prosecution examined 13 witnesses and exhibited a total of 40 documents on record. The statement of the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent 6 and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the appellant/accused for the offences punishable under Sections 450, 354, 354(B), 506 Part-II and 323 of the IPC and Sections 4 and 8 of the POCSO Act, sentenced him accordingly as mentioned in para 3 of the judgment. Hence, this appeal. 11. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. It is further submitted that though the injury report goes to show that the victim has sustained injuries on her person, on account of which the trial Court has convicted the appellant under Section 323 of IPC and sentenced him to undergo 01 year of RI, and the appellant has already undergone about 2 years and 6 months of jail sentence, therefore, the sentence already undergone by him may be suffice to meet the ends of justice. The learned trial out have seen that Judgment of Supreme Court in the case of Alamelu and another v. State, represented by Inspector of Police, reported in AIR 2011 SC 715 wherein it has been categorically held that the entries made in the Dakhil Kharij Register should be proved by the person who had made entry in the Register or at least should be proved by the person on whose information the entry was made. But the aforesaid burden of proof has not been discharged by the prosecution. in paragraph 38 & 40 has held as under: "38. We will first take up the issue with regard 7 to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex. P/16 and the certificate issued by PW- 8 Dr. Gunasekaran, Radiologist, Ex. P/4 and Ex. P/5. 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. Therefore, the findings of learned trial Court is totally erroneous and that has been based on the conjunctures and surmises and without finding any legal proof, the learned trial Court has held guilt of the appellant. 12. On the other hand, learned State counsel, as well as learned counsel for the Objector, opposed the submissions made by learned counsel for the appellant and submits that the victim was minor and below 18 years of age at the time of incident, the victim’s Dakhila Kharij Register (Ex.P-4C) relating to her date of 8 birth which contains the date of birth of the victim as 22.04.2006. Therefore there is no illegality or infirmity in the findings of the learned trial Court. The prosecution has proved its case beyond reasonable doubt and the victim (PW-5) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 13. I have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 14. The first and foremost question arose for the consideration would be whether the victim was minor and less than 18 years of age on the date of incident or not ? 15. In order to consider the age of the victim, we have examined the evidence available on record. The prosecution has mainly relied upon the entry in Dakhil-kharij Register, which was seized vide Ex.P-4C, statements of the victim (PW-5), mother of the victim (PW-4), and Veena Kanwar (PW-01), Head Master of Government Primary School, Nagda, Bemetara. According to the Dakhil-kharij Register (Ex.P-4C), the date of birth of the victim is 22.04.2006. 16. 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 9 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." 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 of Police, 2011(2) SCC 385, 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 10 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 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 11 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 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 12 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 victim 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 13 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 14 has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7. This Court has observed that a hypertechnical 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 15 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 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 16 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 thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, 17 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 fromthe school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, 18 in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 20. In relation to the age of the victim, the Investigating Officer of the case, R.K. Kashyap (PW-11), in his inquiry regarding the victim’s age, gave evidence that on 13.05.2023 he seized the victim’s Dakhila Kharij Register (Ex.P-4C) as per seizure memo (Ex.P-02), in which the victim’s date of birth is recorded as 22.04.2006. The mother of the victim (PW-04) also stated that the date of birth of his daughter is 22.04.2006. 21. In this regard, the prosecution has produced the evidence of the the Headmaster, Veena Thakur (PW-01), stated in her deposition that in the original Dakhila Kharij Register (Ex.P-4C) produced by her, at Serial No. 1638, the names of the victim and her parents are recorded, in which the date of birth of the victim is entered as 22.04.2006. Furthermore, according to the testimony of the victim’s mother (PW-04), the victim was enrolled in school by her father. The victim’s father passed away two or three years prior to the date of incident. The victim’s mother belongs to a labour-class background, and she stated that she did not know whether the date of birth recorded in the school is correct or not. However, she has not made any statement suggesting that the victim was above 18 years of age at the time of the incident. She mentioned her own age and her age at the time of marriage only on the basis of approximation; therefore, the victim’s age cannot be assessed on that basis. 19 22. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Sections 450, 354, 354(B), 506 Part-II and 323 of the IPC ? 23. Section 450 of IPC reads as under: 450. House-trespass in order to commit offence punishable with imprisonment for life.— Whoever commits house-trespass in order to the committing of any offence punishable with1[imprisonment for life], shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine. 24. The victim (PW-05) has stated that on 29.12.2022, when her mother and younger brother had gone to watch a cultural programme at night, she was alone at home due to illness. Around 1:30–2:00 a.m., while returning from the bathroom outside the house, the appellant Komal allegedly gagged her, took her inside the house, and committed rape twice, threatening to kill her if she informed anyone. Out of fear, she disclosed nothing to her family. She further alleged that on 06.05.2023, when she was again alone at home, the appellant came, caught her hands, pressed her breasts, and tried to remove her clothes. When she shouted, he fled. As she went to inform her grandfather, the appellant assaulted her with a stick on her hip. She claimed that Manish Banjare (PW-08) and Rajendra Verma (PW-10) saw the incident. The victim stated that she called her mother from her 20 uncle’s phone and told her about the assault. When her mother returned, she narrated both incidents. The village sarpanch and kotwar advised them to lodge a report, after which she submitted a written complaint on 08.05.2023. 25. Upon evaluating the testimony of independent witnesses, Manish Banjare (PW-08) only stated that he saw a fight between the victim and the appellant’s sister, not any assault by the appellant. Rajendra Verma (PW-10) stated that he saw some argument between the victim and the appellant on 06.05.2023 and that the appellant hit her with a stick, but he came to know of the alleged rape only the next day from others. Hence, No independent witness has stated that he saw the appellant trespassing into the house of the victim at any point of time. On the contrary, the material witnesses, namely Manish Banjare (PW-08) and Rajendra Kumar Verma (PW-10), have not supported the prosecution case and have not stated anything regarding any house-trespass by the appellant. 26. Sections 354, 354(B) & 506 of the IPC reads as under: 354. Assault or criminal force to woman with intent to outrage her modesty.— Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, 1[shall be punished with imprisonment of either description for a term which 21 shall not be less than one year but which may extend to five years, and shall also be liable to fine]. 354B. Assault or use of criminal force to woman with intent to disrobe.— Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine. 506. Punishment for criminal intimidation.— Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 27. The victim (PW-05) has herself stated that she called her mother using her uncle Kumevar’s mobile phone and informed her about the assault, adding that she would tell the remaining details upon her mother’s return. When her mother came back to the village, 22 she disclosed both incidents: (i) the alleged rape on the night of the Panthi dance, and (ii) the incident of 06 May where the accused allegedly caught her hands and assaulted her. After her mother’s return, they informed the village Sarpanch and Kotwar, who advised them to register a report. Thereafter, on 07 May, her mother returned to the village again, and on 08 May at about 9:00 a.m., they went to Police Outpost Maro. She submitted a written complaint (Ex.P-12) upon which the police registered the FIR (Ex.P-13). The Investigating Officer Anupama Dubey (PW-13) supported her version regarding the written complaint and registration of FIR. 28. Furthermore, The victim’s grandfather (PW-06), however, did not support the case of prosecution. He stated that he could not say the exact date of the incident, but the incident took place two– three days prior to the date when the accused went to jail, he was sitting outside his house (which is opposite the appellant’s house). His daughter-in-law and granddaughter/victim live separately. He stated that there had been a quarrel between the victim and the sister of the appellant in front of the appellant’s house, and the appellant merely separated them. He denied knowledge of any other incident. 29. The victim’s grandfather (PW-06) made no statement supporting the incident. The independent witness Manish Banjare (PW-08), whom the victim claimed had seen the incident, also did not 23 support the prosecution. The alleged incident of rape was never disclosed to anyone immediately, nor was any prompt report made. On the contrary, prosecution witness Manish Banjare and defence witness Sushila Patre (DW-1) both stated that on the date of the alleged incident, the accused was present at the cultural programme from 12:00 midnight to 6:00 a.m., contradicting the victim’s statements. 30. The defence also pointed out that Rajendra Verma (PW-10), at whose house the victim’s mother used to work at earlier had previous enmity with the accused. They further argued that on 06.05.2023, it was actually the appellant’s sister who quarrelled with the victim, which is supported by the statements of Manish Banjare (PW-08) and the victim’s grandfather (PW-06). Thus, there is every likelihood that the FIR was lodged due to previous enmity between the victim and the appellant’s sister. 31. In view of the above defence arguments, the evidence of the independent witnesses Manish Banjare (PW-08) and Rajendra Kumar Verma (PW-10), who allegedly saw the accused assaulting the victim, was examined first. Manish Banjare (PW-08) stated that about two–three months earlier, while he and Rajendra Verma (PW-10) were going towards the fields, they saw a quarrel between the appellant’s sister and the victim in front of the house of the appellant; thereafter, they left the field. He stated that he knew nothing else about the incident. Similarly, Rajendra Kumar 24 Verma (PW-10) deposed that on 06.05.2023, at about 1:00 p.m., he saw an argument between the victim and the accused near the appellant’s house, and that the accused hit the victim from behind with a stick. He stated that several family members and neighbours of the accused were present. He came to know about the alleged rape only the next day while sitting with others at the Sarpanch’s shop. 32. Upon a careful and anxious consideration of the entire evidence on record, this Court finds that the prosecution has failed to establish the charges against the appellant/accused beyond reasonable doubt. The material witnesses, namely Manish Banjare (PW-08) and Rajendra Kumar Verma (PW-10), who were cited as independent eyewitnesses supporting the version of the victim, have not corroborated the allegations of rape. On the contrary, Manish Banjare (PW-08) has clearly deposed that he only saw a quarrel between the victim and the appellant’s sister, which was pacified by the appellant. The victim’s grandfather (PW-06) has also not supported the prosecution and has admitted only a quarrel between the two girls. The evidence on record further reflects that on the date of the alleged first incident, the appellant was continuously present at the village cultural programme from midnight till early morning, as admitted by both prosecution and defence witnesses, which directly contradicts the version of the victim. 25 33. It also emerges from the irrefutable testimony of Manish Banjare (PW-08) and victim’s grandfather (PW-06) that there existed prior animosity between the victim and the appellant’s sister, arising out of their earlier quarrel. The defence has successfully demonstrated that the FIR was lodged only after this quarrel. 34. 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 be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 35. The unexplained delay in reporting the alleged incident of rape, coupled with the absence of any independent evidence, materially affects the credibility of the prosecution story. The contradictory statements of the victim and her mother, the non-support of key witnesses, and the admitted prior enmity between the parties create a serious doubt about the truthfulness of the allegations. 36. In view of these glaring inconsistencies and the possibility that the FIR was lodged due to previous enmity and personal grudge, this Court holds that the prosecution has failed to dispel the 26 reasonable doubts arising from the evidence. Accordingly, the appellant/accused is entitled to the benefit of doubt and is acquitted from the charges leveled against him under Sections 450, 354, 354(B) and 506 Part-II of the IPC and Sectins 4 and 8 of the POCSO Act. 37. So far as charge under Section 323 of IPC is concerned, Dr. Khushboo Dewangan (PW-09) further deposed that on the external physical examination of the victim, she found blood- stained contusions on both hips. The contusion on the right hip measured 4 × 6 cm, and on the left hip 2 × 3 cm. On internal examination of the victim’s genitalia, she found no external injury, and the hymen was old and ruptured. The victim’s secondary sexual characteristics were fully developed. When the victim was produced before her for examination, she noted that the victim had 14–15 teeth in both upper and lower jaws. The doctor specifically stated that she could not give any definite opinion regarding recent sexual intercourse. For determining the possibility of sexual intercourse, she prepared two vaginal smear slides and two swabs for chemical analysis, sealed them and sent them for forensic examination. According to her observation, the victim was physically, mentally and sexually healthy. The MLC report prepared by her is Exhibit P-23. 38. Dr. Khushboo Dewangan (PW-09) further stated that on the same date, the victim was again produced before her with a separate 27 written request regarding the allegation of beating by the accused with a stick. On external examination, she again found blood- stained contusions on both hips, measuring 4 × 6 cm on the right and 2 × 3 cm on the left, which, according to her, were possible by a blunt object. The victim complained of pain at the said locations. She prescribed medication on the OPD slip (Exhibit P-25) and advised UPT, VDRL, HIV, HBsAg and HCV tests. Her medical testimony remained irrefutable during cross-examination. 39. Thus, it is clearly established from the evidence of Dr. Khushboo Dewangan (PW-09) that the victim sustained external injuries in the form of contusions on both hips, and the victim attributed these injuries to the accused. This version also stands corroborated by independent witness Rajendra Verma (PW-10). However, the doctor categorically stated that she could not give any definite opinion regarding sexual intercourse. The MLC and FSL samples were taken, but no conclusive medical finding supports the allegation of rape, whereas the injuries found are consistent only with assault. 40. The above medical evidence conclusively establishes the offence under Section 323 IPC, as the injuries; contusions on both hips, are medically proved and are attributed to the accused, and this testimony remains unchallenged. Conversely, the medical officer has given no definite opinion regarding rape, and neither the MLC nor the FSL report establishes sexual assault, thereby failing to 28 support the charge of rape, but fully supporting the charge of voluntarily causing hurt, which covers the offence under Section 323 of IPC, and the trial Court rightly convicted and sentenced the appellant for the offence under Section 323 of IPC. 41. Considering the above facts and circumstances, it is evident that the testimonies of the independent witnesses and even of the victim’s grandfather do not support the allegation of rape; rather, they confirm only a prior quarrel between the victim and the appellant’s sister. The established prior enmity, the unexplained delay in lodging the FIR, the material contradictions in the statements of the victim and her mother, and the absence of any reliable corroborative evidence cumulatively demolish the prosecution case. In such circumstances, the prosecution has failed to prove the charge under Sections 450, 354, 354(B) and 506 Part-II of the IPC and Sectins 4 and 8 of the POCSO Act against the appellant beyond all reasonable doubt. 42. So far as the charge under Section 323 of the IPC is concerned, the appellant has been sentenced to undergo one year of rigorous imprisonment, and no fine has been imposed upon him. The appellant has already undergone approximately two years and six months of incarceration. Since no minimum punishment is prescribed under Section 323 of the IPC, the period already undergone by the appellant would be sufficient to meet the ends of justice. Accordingly, it would be appropriate to limit the 29 sentence to the period already undergone by him. 43. For the foregoing reasons, the criminal appeal is partly allowed. The conviction and sentence of the appellant under Sections 450, 354, 354(B) and 506 Part-II of the IPC and Sections 4 and 8 of the POCSO Act are hereby set aside. However, the conviction of the appellant under Section 323 of the IPC is maintained. Considering the fact that the appellant has already undergone custody of 2 years and 6 months, as stated by learned counsel for the appellant, hence, he has already undergone the sentence under Section 323 of IPC as awarded by the trial Court. It is ordered accordingly. The appellant is reported to be in jail since 10.05.2023. He be released forthwith unless wanted in any other case. 44. Registrar (Judicial) is directed to transmit the copy of the this order as well as the original record to the concerned trial Court, and also transmit a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing the jail term, for necessary information and follow up action. Sd/- (Ramesh Sinha) Chief Justice Rajshekhar