1 2025:CGHC:55784-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1477 of 2024 Dhiraj Banjare S/o Jyotish Banjare Aged About 21 Years R/o Village Dhoda, Police Station Hathband, Taluka Simga District- Balodabazar- Bhatapara, Chhattisgarh. ... Appellant Versus State of Chhattisgarh Through The Station House Officer, Police Station Hathband District- Balodabazar-Bhatapara, Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Aishwarya Kumar Dubey, Advocate For Respondent/State : Mr. Malay Jain, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 17.11 .2025 1. Heard Mr. Aishwarya Kumar Dubey learned counsel, appearing on behalf of the appellant as well as Mr. Malay Jain, learned Panel Lawyer, appearing on behalf of the State/respondent. ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.11.17 17:34:44 +0530 2 2. This appeal is directed against the judgment of conviction and order of sentence dated 27.07.2024 passed by the Additional Sessions Judge, Bhatapara, District Balodabazar-Bhatapara, Chhattisgarh in Special Criminal Case No.03/2024 whereby the appellant has been convicted for the offence punishable under Sections 363, 366 of the Indian Penal Code, 1860 (for short, “IPC”) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and sentenced to undergo rigorous imprisonment for 03 years and fine of Rs.100/-, in default of payment of fine, additional rigorous imprisonment for 10 days, rigorous imprisonment for 05 years and fine of Rs.100/-, in default of payment of fine, additional rigorous imprisonment for 10 days and rigorous imprisonment for 20 years and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 50 days, respectively and it was further directed to run all the sentences concurrently. 3. Learned State counsel submits that notice issued to PW-1 mother of the victim has been served, but none has appeared on behalf of the victim to contest the present appeal. 4. The prosecution case, briefly stated, is that the mother of the victim (PW-1) lodged an oral report at Police Station Hathband, stating that her daughter, aged 17 years, 5 months, and 27 days, had left home at about 09:40 AM on 28.11.2023 for school but did not return. Acting on this information, Missing Person Report No. 3 23/2023 was registered, and investigation commenced. Prima facie, considering that the victim was a minor and suspecting that an unknown person had enticed and taken her away, the police concluded that an offence under Section 363 IPC was made out. Accordingly, and in compliance with the prior directions of the Hon’ble Supreme Court, a case under Section 363 IPC was registered. 5. During the course of investigation, the victim was recovered on 24.12.2023 from Nagnor, within the jurisdiction of Kamwai Police Station, District Yadgiri, Karnataka vide recovery panchnama (Ex.P/2). Her statement was recorded, wherein she disclosed that accused Dhiraj Banjare had enticed her and taken her to Bamhanmudi, where she was made to stay in a separate room and where the accused, despite her refusal, subjected her to sexual intercourse. The victim further stated that on 29.11.2023, accused Dhiraj Banjare, along with his maternal uncle, co- accused Ubaran Das, visited Giroudpuri and thereafter took her to Pandariya. From there, they boarded a train via Bilaspur to Gondia and subsequently travelled to Secunderabad. They then proceeded by bus to Nagnor (Kamwai Police Station, District Yadgiri, Karnataka), where she was confined in an old building situated near a hospital. The victim told co-accused Ubaran Das that she wanted to return home, but he allegedly stated that she would not be allowed to return until she bore a child. She remained confined there for 23–24 days, during which the 4 accused Dhiraj Banjare repeatedly subjected her to sexual intercourse against her will. On 24.12.2023, the victim’s mother and uncle reached the place along with the Hathband police. The victim returned with them to Hathband. She was formally recovered at about 20:00 hours on 24.12.2023, and her statement was recorded. On the basis of her statement, offences under Sections 366, 376, 368 and 34 IPC, along with Sections 4 and 6 of the POCSO Act, were added. 6. The clothes worn by the victim and the accused at the time of the incident were seized in the presence of witnesses vide Ex.P/4. Crime details form was prepared vide Ex.P/7 and spot map was prepared vide Ex.P/8. The victim was subjected to genital examination, and the seized ‘gamcha’ was also examined. The accused persons were arrested. The victim’s statement under Section 164 of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) was recorded vide Ex.P/10. The seized articles were sealed and sent for chemical examination vide Ex.P/26. Records pertaining to the victim’s age, namely the admission-discharge register and the Affidavit Register of Government Primary School, Dhodha were seized and later returned on Supurdnama vide Ex.P/13 to Ex.P/18 and certified copies were placed on record. 7. Upon completion of investigation, a charge-sheet was filed against the accused persons for offences under Sections 363, 5 366, 376, 368 and 34 IPC and Sections 4 and 6 of the POCSO Act. 8. Charges were framed against accused Dhiraj Banjare for the offences punishable under Sections 363, 366 and 376(2)(n) of the IPC and Section 6 of the POCSO Act, and against co-accused Ubaran Das for the offences punishable under Sections 366(A), 368, and 376/109 of the IPC and Section 17 of the POCSO Act. Both accused pleaded not guilty to the charges and claimed trial. The trial accordingly proceeded. 9. To establish the charges levelled against the accused persons, the prosecution examined seven witnesses, namely: victim’s mother (PW-1), victim (PW-2), victim’s uncle (PW-3), Dr. Dharani Patel (PW-4), Kriparam (PW-5), victim’s School Assistant Teacher (PW-6), and Sub-Inspector Netram Patel (PW-07) as well as exhibited 26 documents vide Ex.P/1 to Ex.P/26. In order to prove defence, the accused has not examined any witness, but exhibited two documents, namely Ex.D/1 and Ex.D/2, respectively. 10. The statements of accused persons were recorded under Section 313 of CrPC, wherein they denied all incriminating circumstances appearing against them and claimed false implication. Both accused declined to adduce any evidence in defence. 11. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted 6 the appellant-Dhiraj Banjare and sentenced him as mentioned in the second paragraph of this judgment and acquitted the accused-Ubaran Das for the offences punishable under Sections 366(A), 368 and 176/109 of IPC as well as Section 17 of the POCSO Act. Hence this appeal. 12. Learned counsel for the appellant submits that the learned trial Court has erred in appreciating the depositions and evidence brought on record in their correct perspective, resulting in a perverse and unsustainable judgment, which is bad in law. It is contended that the prosecution has failed to prove its case beyond reasonable doubt. According to learned counsel, there exist material inconsistencies, discrepancies, omissions and contradictions in the evidence of the prosecution witnesses which go to the root of the matter and render the prosecution story wholly unreliable. He further submits that the trial Court failed to properly consider the appellant’s statement under Section 313 CrPC, wherein he categorically pleaded innocence and asserted false implication. It is urged that even the victim admitted in her cross-examination that she had accompanied the appellant voluntarily, which demolishes the allegation of kidnapping or taking away against her free will. 13. It is further submitted that the learned trial Court failed to appreciate that the victim, who is a literate and mature girl, admitted in her cross-examination that throughout the journey 7 from the garden at Village Behanmundi, to Girodhepuri Dham temple, to Pandariya, Bilaspur Junction, Gondia, Secunderabad, and ultimately Nagnor, she had ample opportunity to seek help from the public and police personnel present at these highly crowded and public places, including railway stations. Her conduct, therefore, is inconsistent with the allegation of being abducted or restrained against her will and is fatal to the prosecution’s case. He next contends that the trial Court has erred in holding the age of the victim to be 17 years, 5 months, and 27 days on the basis of the admission-discharge register (Ex.P/14). It is submitted that the said entry is not substantiated by any material indicating the basis on which the date of birth was recorded. It is argued that the mother of the victim herself admitted in cross-examination that she did not know the exact age of the victim. The School Assistant Teacher (PW-6) also conceded that he was not posted at the school at the time the register was prepared and did not know who had signed it or what material was relied upon for recording the age. 14. Learned counsel placed reliance on the decisions of the Hon’ble Supreme Court in Ravinder Singh Gorkhi v. State of U.P., (2006) 5 SCC 584, and Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604, to argue that although a school register may be admissible under Section 35 of the Evidence Act, an entry regarding age has little evidentiary value unless supported by the underlying material on which the entry was based. Reliance is 8 also placed on Alamelu v. State, (2011) 2 SCC 385, wherein the Hon’ble Supreme Court reiterated that even a Transfer Certificate duly signed by the Headmaster would have limited evidentiary value unless the foundational material for the date of birth is produced. 15. Learned counsel further submits that the testimony of PW-3 uncle of the victim, is purely hearsay, as he himself admitted that whatever he had deposed was based on what he was told by the mother of the victim. He was declared hostile, thereby weakening the prosecution’s case. It is next contended that the medical evidence does not support prosecution version. PW-4 doctor who examined the victim, opined that no definite opinion of rape could be given. The medical report (Ex.P/6) notes absence of any injuries on the person of the victim, which, according to learned counsel, belies the allegations of forcible sexual intercourse, particularly when the prosecution alleges repeated acts over several days. It is argued that the seizure witness PW-5 turned completely hostile and clearly stated that the police had taken his signature on blank papers and that he had no knowledge of the alleged seizures. It is therefore submitted that entire seizure proceedings are illegal and cannot be relied upon. 16. Learned counsel places reliance on Sanjay Manikpuri v. State of Chhattisgarh, CRA No. 1356 of 2021, wherein this Court held that although conviction for rape can rest on the sole testimony of 9 the victim, such testimony must inspire confidence. If the testimony is doubtful or unreliable, conviction cannot be sustained. It is argued that the testimony of the victim in the present case suffers from serious inconsistencies and does not inspire confidence. It is further submitted that the prosecution has failed to prove the age of the victim beyond reasonable doubt, and equally failed to establish absence of consent, which is essential once the defence of voluntary companionship is raised and the conduct of the victim strongly supports such a hypothesis. According to learned counsel, both these aspects create substantial doubt in favour of the appellant. He contends that in view of the medical evidence, the conduct of the victim, and the unreliable nature of the prosecution witnesses, a reasonable doubt arises which must enure to the benefit of the appellant. It is therefore submitted that the conviction recorded by the learned trial Court is unsustainable and the appellant should be acquitted of the charges framed against him. 17. On the other hand, learned counsel for the State supported the impugned judgment and submitted that the trial Court has rightly appreciated the evidence on record and recorded a well-reasoned conviction. It is contended that the findings do not suffer from any illegality, perversity, or infirmity warranting interference by this Court. He further submits that the victim was a minor at the time of the incident, and therefore, the question of consent is wholly irrelevant for the offences under the POCSO Act as well as 10 Section 376 IPC. It is argued that even assuming, without admitting, that the victim accompanied the appellant voluntarily, such alleged voluntary conduct cannot exonerate the appellant once the victim is proved to be under 18 years of age. It is further submitted that the prosecution has duly proved the age of the victim through the Admission/Withdrawal Register seized from the Government Primary School, Dhodha, which was exhibited during trial. The learned trial Court has rightly relied upon the said document as a public record maintained in regular discharge of official duties. The State contends that minor discrepancies in the testimony of the school teacher or the mother do not dilute the evidentiary value of the school register, particularly when no contrary document has been produced by the defence. 18. Learned State counsel submits that the testimony of the victim (PW-2) is consistent, natural, and trustworthy. She has clearly deposed that the appellant enticed her away and repeatedly subjected her to sexual intercourse against her will at different locations over a prolonged period. Her evidence, it is urged, inspires confidence and is sufficient to sustain conviction even without corroboration, as settled by catena of judgments of the Hon’ble Supreme Court. It is argued that the mere fact that the victim did not raise an alarm at public places cannot be used to discredit her testimony. Learned counsel submits that victims of sexual offences, particularly minors, often remain under fear, pressure, and psychological control of the accused, and their 11 behaviour cannot be judged by normal human conduct. The State asserts that the defence theory of voluntary companionship is improbable and inconsistent with the deposition of the victim. Learned State counsel further contends that the medical evidence does not disprove the prosecution case. It is submitted that absence of injuries or a definite medical opinion is not conclusive to negate rape, especially when the sexual assault occurred repeatedly over several days and the medical examination was conducted after a considerable delay. Reliance is placed on settled law that medical evidence is only corroborative, and where the testimony of the victim is cogent and credible, conviction can be sustained even in the absence of medical corroboration. 19. With respect to the hostile witnesses, particularly PW-3 and PW-5, it is submitted that the prosecution case does not fail merely because certain witnesses turned hostile. The consistent testimony of the victim, duly supported by her statement recorded under Section 164 of CrPC, the recovery of the victim, and other surrounding circumstances, sufficiently establish the guilt of the appellant. He further submits that the conduct of the accused in taking the minor victim across multiple districts and eventually to another State, keeping her concealed for nearly a month, and repeatedly committing sexual assault clearly establishes the ingredients of Sections 363, 366, 376 IPC and Sections 4 and 6 of the POCSO Act. The defence has failed to elicit any material contradiction in the prosecution evidence which may render the 12 prosecution case doubtful. It is therefore contended that the prosecution has proved its case beyond reasonable doubt. The conviction recorded by the learned trial Court is justified and calls for no interference. The sentence imposed is stated to be commensurate with the gravity of the offence and in accordance with statutory mandates. 20. We have heard learned counsel for the parties at length and have carefully perused the entire record of the trial Court with utmost circumspection. The submissions advanced on behalf of both sides have been duly considered in the light of the factual matrix of the case and the legal principles governing the field. Each material aspect of the matter has been examined to determine whether any infirmity, perversity, or jurisdictional error exists in the impugned order so as to warrant interference by this Court. 21. The first and foremost question that arises for consideration is whether the victim was a minor, i.e., below 18 years of age, on the date of the alleged incident ? 22. This issue assumes paramount significance, as the determination of the victim’s age has a direct bearing on the applicability of the provisions of the POCSO Act and the corresponding penal provisions under the IPC. The age of the victim is a foundational fact, and its correct ascertainment is essential for deciding the nature of the offence, the culpability of the accused, and the statutory presumptions that may come into play. Therefore, before 13 adverting to any other aspect of the matter, it is necessary to examine, with due care and on the basis of the evidentiary material available on record, whether the prosecution has satisfactorily established that the victim was indeed below 18 years of age at the relevant point of time. 23. In order to consider the age of the victim, we have examined the evidence available on record. The prosecution has mainly relied upon Dakhil-kharij Register (Ex.P/14C), statements of mother of the victim (PW-1), victim herself (PW-2), uncle of the victim (PW- 3) and Rameshwar Prasad Sharma (PW-6), Assistant Teacher of Government Primary School, Dhodha, Police Station Hathband. According to the Dakhil-kharij Register (Ex.P/14C), the date of birth of the victim is 02.06.2006. 24. The mother of the victim (PW-1) has deposed in her evidence that her daughter was aged about 17 years and her year birth was 2006, but she did not know the date and month of birth of her daughter, i.e. the victim. In cross-examination, she has admitted that she did know her daughter’s date of birth. 25. The victim herself (PW-2) has deposed in her examination-in-chief that her date of birth was 02.06.2006 but in her cross- examination, she has not deposed anything about her date of birth. 26. Likewise, uncle of the victim (PW-3) has deposed in his evidence that the age of the victim was about 17 years and her date of birth 14 was 02.06.2006, but in cross-examination, he has not deposed anything about date of birth of the victim. 27. Rameshwar Prasad Sharma (PW-6), Assistant Teacher, Government Primary School, Dhodha, has deposed that as per Page No. 143, Serial No. 1619 of Dakhil-Kharij Register (Ex.P/14), the name, caste, address, and date of birth of the victim were recorded, and the victim’s date of birth was mentioned as 02.06.2006 in words and figures. He further stated that the victim was admitted to Class-I on 20.06.2012, and after passing Class-V, a transfer certificate was issued on 31.03.2017. He also deposed that after providing duly attested copies of the original admission register (Ex.P/14C) and the affidavit register (Ex.P/15C), the original register was received pursuant to the surrender memo (Ex.P/16). In cross-examination, he has admitted that the date of birth recorded in the Dakhil-Kharij Register (Ex.P/14s) was not in his handwriting, and he was unable to state in whose handwriting it was written. He further admitted that the name of the victim, the victim’s mother, and their caste were written in red ink, while the remaining entries were in blue ink; however, he volunteered that such practice was followed to ensure easy visibility of essential particulars. He candidly stated that he could not say on what basis the date of birth of the victim was entered in the admission register (Ex.P/14). He further stated that he could not identify the handwriting in the affidavit (Ex.P/15) and volunteered that the affidavit was submitted by the victim’s 15 father. He admitted that the affidavit (Ex.P/15) was not signed in his presence, as he was not posted at the school at that time. He also stated that he could not state on what basis the date of birth of the victim was recorded in the affidavit (Ex.P/15). 28. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school Dakhil-kharij register, it would not be safe to hold that the victim was minor on the date of incident. The statements of mother of victim (PW-1), victim herself (PW-2), uncle of the victim (PW-3), as also the statement of Rameshwar Prasad Sharma (PW-6), Assistant Teacher, Government Primary School, Dhodha are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the victim is 02.06.2006. 29. Very recently, the Hon’ble Supreme Court in the matter of Birka Shiva v. State of Telangana, 2025 SCC OnLine SC 1454 has observed as under: "8. The evidentiary value of such an entry made in public or official registers may be admissible in evidence under Section 35 of the Indian Evidence Act, 1872. However, admissibility is distinct from probative value. While such documents may be admitted into evidence, their evidentiary weight depends on proof of their authenticity and the source 16 of the underlying information. Mere production and marking of a document as exhibited by the Court does not amount to proof of its contents. Its execution has to be proved by leading substantive evidence, that is, by the ‘evidence of those persons who can vouchsafe for Hereinafter referred to as the ‘Evidence Act’ the truth of the facts in issue’. [See: Narbada Devi Gupta v. Birendra Kumar Jaiswal] We may refer to a few judicial pronouncements of this Court in this regard: 8.1. This Court, in Birad Mal Singhvi v. Anand Purohit, held that the entries contained in the school register are relevant and admissible but have no probative value unless the person who made the entry or provided the date of birth is examined. It was observed: “14. … If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. … 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. The entry contained in the admission form or the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. … 15. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. 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 17 discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the 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. … The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined…" (Emphasis Supplied) This decision has been consistently followed by this Court in Pratap Singh v. State of Jharkhand; Babloo Pasi v. State of Jharkhand; Murugan v. State of T.N.; State of M.P. v. Munna; C. Doddanarayana Reddy v. C. Jayarama Reddy; and Manak Chand v. State of Haryana. 8.2. A coordinate Bench of this Court in State of Chhattisgarh v. Lekhram, through S.B. Sinha, J., clarified that though entries in school registers are admissible under Section 35 of the Evidence Act, their evidentiary value improves only when corroborated by oral testimony of persons who are aware of its content, such as parents or the person who made the entry at the time of admission. It held as under: “12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the victim disclosed her date of birth. The father of the victim also deposed to the said effect. 13. …The materials on record as regards the age of the victim were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive, but it has evidentiary value. Such evidentiary value of a school register is 18 corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the victim." 8.3. Similarly, this Court in Satpal Singh v. State of Haryana, stated that though a document may be admissible, but to determine whether the entry contained therein has any probative value, may still be required to be examined in the facts and circumstances of a particular case. It held as follows: “26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. x x x 28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.” 8.4. In Madan Mohan Singh v. Rajni Kant, this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. It was held as follows : 19 “20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 21. … For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. …” 8.5. This Court, in Alamelu v. State, while dealing with a similar factual matrix, held that the prosecution had failed to prove that the girl was a minor at the relevant date since the transfer certificate of a Government School showing age was not duly proved by witnesses. It observed as under: “40. Undoubtedly, the transfer certificate, Ext. P- 16 indicates that the girl's date of birth was 15-6- 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. 31-7-1993. 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 Evidence Act, 1872. 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. 20 41. We may notice here that PW 1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention the girl's age or date of birth. PW 2 was also examined on 9-8-1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. … In her cross- examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth was noticed as 15-6- 1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.” (Emphasis supplied) 9. In the attending facts, we find that the evidentiary value of Ex.P11 is significantly undermined in the absence of corroborating material. We say so for the following reasons: (i) PW-13, who is the Headmaster of Zilla Parishad High School, Chandanapur, Peddapalli District (erstwhile Karimnagar District), stated that the victim studied in his school from 2007 to 2013, i.e., 6th Class to 10th Class and that the Admission Register records her date of birth as 3rd November 1996. However, in his cross-examination, he admitted that he had no personal knowledge as to the source or basis on which the date of birth was recorded therein or if the recorded date of birth was correct or not. The relevant part of his testimony is extracted hereunder: “…In our school there is not clerk to maintain records. I did not produce any certificate pertaining to earlier school I, In which P.W.3 studies up to 5th Class. There must be basis for entering date of birth of a student in our school such as her earlier school record. I do not have personal knowledge as to what record was produced by parents of P.W. 3 as basis to enter her date of birth in our school as I was not Head Master in 2007. 21 I cannot say in which school P.W.3 studied up to 5th Class. In the nominal roll register of our school, the signature of P.W.3 was obtained. I do not have personal knowledge whether the said date of birth of P.W.3 was correct or not and I am giving evidence only on the basis of record.” (Emphasis Supplied) (ii) The prosecution has failed to examine the person who had made the entry in the Admission Register to ascertain on what basis such an entry was made. More so, the entry in respect of the date of birth of the victim in the primary school register, i.e., 1st Class to 5th Class, has not been produced and proved before the Courts below to verify the age as per its records. It is also not possible to ascertain from the records as to whether the date of birth was provided by the parents or simply entered at the behest of another party, without verification, at the time of admission to Zilla Parishad High School. (iii) The testimonies of PW-1, PW-2 and PW-3 are also telling that none of them mentioned the victim's age with specificity. There is no reference to Ex.P11, and no attempt was made by the prosecution to adduce corroborative testimony regarding the victim's date of birth from her family members. Thus, while examining the issue at hand, on the anvil of the principles elucidated above, it is essential to notice that the prosecution has failed to toe the line of legal requisites. There is nothing on record to corroborate the date of birth of the victim as recorded in the birth certificate (Ex.P11) issued by the school. Therefore, it cannot be relied upon to definitely determine the age of the victim and held with certainty that the victim was below sixteen/eighteen years of age. 11. Furthermore, none of the victim's family members, i.e., her mother and brothers have said anything about the age of the victim in their depositions made in the Court. Even the victim is effectively silent on this aspect, only stating that she and her siblings were born approximately two years apart and thereby making an estimation of their ages as well as her own. Throughout her deposition, the victim has remained silent with regard to her particular date of birth. 22 12. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the present facts and circumstances, the proof submitted by the prosecution in the form of Ex.P11 (birth certificate issued by the school) was not sufficient to arrive at a finding that the victim was less than sixteen/eighteen years of age, especially when such a document was not sufficiently corroborated. Therefore, it was neither safe nor fair to convict the appellant based on it, particularly in the context where the age of the victim was such a pivotal factor. " 30. Reverting to the facts of the present case in the light of abovementioned judgment, the mother of the victim (PW-1), victim herself (PW-2) and uncle of the victim (PW-3) have not stated anything in their cross-examinations with regard to date of birth of the victim as well as Rameshwar Prasad Sharma (PW-6), Assistant Teacher, Government Primary School, Dhodha has though has admitted that in the Dakhil-kharij Register (Ex.P/14C), date of birth of the victim has been mentioned as 02.06.2006, but in cross-examination, he has stated that he did not know that on what basis the date of birth of victim has been mentioned in the documents. 31. Except for these evidences, no other evidence like Kotwari register or birth certificate have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses i.e. mother of the victim (PW-1), victim herself (PW-2), uncle of the victim (PW-3) and Rameshwar Prasad Sharma (PW-6), Assistant Teacher, Government Primary School, Dhodha as also Dakhil- 23 kharij Register (Ex.P/14C) are not sufficient to hold that the victim was minor on the date of incident because of the reason that no documents has been shown to ascertain the fact that on what basis the date of birth of the victim was recorded. The entry with regard to age of the victim has been mentioned in the Dakhil- kharij Register (Ex.P/15C) is not sufficient to hold actual date of birth of the victim. There is every possibility that the date of birth of the victim is recorded on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the victim are not of that sterling quality which is sufficient to determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 32. The next question that arises for consideration is whether the appellant had committed rape upon the victim or not? 33. This issue goes to the very root of the prosecution case and requires a careful evaluation of the testimony of the victim, the corroborative medical and forensic evidence, and the surrounding circumstances brought on record. Since the charge of rape carries grave penal consequences, the Court must scrutinize the evidence with due sensitivity while ensuring adherence to the 24 well-settled principles governing appreciation of evidence in sexual offence cases. 34. The law is equally clear that the sole testimony of the victim, if found to be cogent, credible, and trustworthy, is sufficient to sustain a conviction and does not require further corroboration. At the same time, the Court must remain mindful that the evidence must inspire confidence and must not suffer from inherent improbabilities or material contradictions. 35. Accordingly, to determine whether the offence of rape stands established, it becomes necessary to examine the version of the victim, the medical findings, the conduct of the parties, and other attendant circumstances to assess whether the prosecution has proved the charge beyond reasonable doubt. 36. Very recently, in the matter of Tilku Alias Tilak Singh v. The State Of Uttarakhand, 2025 INSC 226, the Supreme Court while dealing with the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, has held as under :- “16. Even if the finding of the learned Single Judge of the High Court that the victim 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 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus: 25 “7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an 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 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 26 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 victim, 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.” 37. PW-1, the mother of the victim, has deposed that the incident occurred about two to three months earlier. The victim, who used to return from school by 4:00 p.m., did not come home on the date of the incident. After making inquiries, she and her brother-in-law lodged a missing report at the police station, on the basis of which the FIR (Ex.P/1) was registered. She stated that three to four days later, the police informed them that the victim had gone to Karnataka, and upon reaching Naganur with the police, they found the victim in the company of the accused and his relatives. The victim and the accused were brought back to Hathband Police Station. She proved the recovery panchnama (Ex.P/2) and 27 surrender panchnama (Ex.P/3). She further deposed that the victim disclosed that the accused had forcibly taken her, restrained her from contacting her family, and committed sexual intercourse with her. She also identified her signatures on the seizure memos of the victim’s clothes (Ex.P/4 and Ex.P/5), the consent memo (Ex.P/6), and the site maps (Ex P/7 and Ex.P/8). 38. In cross-examination, she admitted that she herself was uneducated and could not state her own or her daughter’s date of birth. She denied suggestions that the victim had voluntarily taken clothes, money, Aadhaar card, school ID, or a mobile phone. She admitted that the report was lodged the next morning. She denied that they knew beforehand with whom the victim had gone or that the victim was not recovered from the accused. She further denied that the victim did not narrate the incident to her or that the seizure was not made in her presence, though she admitted she could not specify the exact place from where the victim had left. 39. The victim (PW-2) has deposed in her evidence that the incident took place in November 2023. She stated that a day prior to the incident, during school lunchtime, the accused Dhiraj approached her and asked her to accompany him, assuring that he would take her for a walk and drop her home by evening. He also told her that he would come near her house to pick her up. The next morning, the accused came near her house, and as she was not allowed to go out alone at home, she quietly left with him without 28 informing her family. She stated that the accused first took her to Baloda Bazar, where they waited in a garden, and thereafter his brother-in-law arrived, and all three went to the accused’s sister’s house at village Behnamudi. According to her, the accused’s sister told her that she would be taken for a walk and dropped home the next day after informing her parents. 40. PW-2 has categorically stated that during the night at the accused’s sister’s house, the accused forcibly committed sexual intercourse with her and assaulted her when she refused. She further stated that though she disclosed this to the accused’s sister and aunt the next morning, they asked her not to tell anyone and assured her that she would be sent home, but instead, the accused and his uncle and aunt took her to Girodpuri, where she was again assaulted for resisting. She deposed that thereafter the accused and his uncle and aunt, promising to drop her home, took her to Pandaria, and from there to Bilaspur by bus, and then by train from Bilaspur to Gondia, then to Secunderabad, and finally to Naganur in Karnataka, threatening to kill her if she raised any alarm. She claimed she attempted to escape on the train but was beaten and stopped. She has further stated that while staying in Naganur, the accused repeatedly forced himself upon her, assaulted her on refusal, did not allow her to contact her family, and did not permit her to leave the house, and that the local people did not understand her language. 29 41. She further stated that the accused’s maternal uncle and aunt told her she would not be allowed to return home until she had a child. She was ultimately recovered by the police who accompanied her mother and uncle. She proved the seizure memos of her underwear and towel (Ex.P/4 and Ex.P/5), the consent memo for medical examination (Ex.P/9), and her statement recorded under Section 164 CrPC (Ex.P/10), all bearing her signatures. 42. In cross-examination, she admitted that she was educated and understood right and wrong, and that she had known the accused for about one year prior to the incident. She acknowledged that she initially accompanied the accused of her own free will “to go for a walk” and stayed at his sister’s house, which was located in a densely populated village. She also admitted that on the way to Girodpuri they passed through several busy villages, that the road had traffic, and that at various locations including Girodpuri temple, Pandaria, buses, Bilaspur railway station, and train stations, she did not inform anyone that she was being taken forcibly. She denied suggestions that she had left home with clothes, money, or a mobile phone; that she made no attempt to get off the train at Bhatapara; or that she had gone with the accused voluntarily throughout. She also denied that the accused used to go for work regularly in Karnataka or that she did not complain to anyone there. She denied making a false statement under family pressure and reaffirmed that she was forcibly taken and sexually assaulted by the accused. 30 43. Likewise, the uncle of the victim (PW-3) has broadly supported the testimony of the victim’s mother (PW-1) and substantially corroborated the prosecution version. He deposed that on the date of the incident, when he went to the school to bring the victim back home, she was found missing. Upon making inquiries with her teacher and classmates, he was informed that the victim had not attended school that day. He, along with other family members, searched for her in the neighbourhood and among relatives, but she could not be traced, whereafter they proceeded to Hathband Police Station and lodged a report of her disappearance. He further stated that three to four days after the report was lodged, the police informed them that the victim had moved away, and subsequently it came to their knowledge that she was in Naganur, Karnataka. He accompanied the police and the victim’s mother to Karnataka, where they found the accused, his maternal uncle and aunt, and the victim residing together in the same house. The victim and the accused were brought back to the Hathband Police Station, and a recovery panchnama (Ex.P/2) was prepared. 44. PW-3 further deposed that in his presence, the police seized the underwear and towel allegedly worn by the victim at the relevant time and prepared seizure memos (Ex.P/4 and Ex.P/5). He stated that the victim had disclosed to him only that she had gone with the accused and his relatives to visit Girodpuri and that thereafter 31 they had not allowed her to return home, and that whatever else she had narrated was told to her mother. 45. Upon being confronted, he denied the suggestion that the victim had stated that the accused, Dhiraj, had forced sexual intercourse upon her, and stated that this information was conveyed to him by his sister-in-law. In cross-examination, he denied the suggestions that the victim had attended school on the date of the incident and left during lunch hours, or that the accused had not forcibly taken or detained her, or that the victim had not been found in the company of the accused Dhiraj. 46. Dr. Dharani Patel (PW-4) has deposed that the victim was brought before her on 26.12.2023 by Woman Constable Jageshwari (No. 44), Hathband Police Station, for physical and genital examination in connection with Crime No. 134/2023. After obtaining the victim’s consent, she conducted the medical examination and noted the following findings:- “(i) Identification Mark: A tattoo mark was present on the victim’s left hand. (ii) Menstrual History: The victim reported her last menstrual period on 15.12.2023 and stated that her first menstruation occurred at the age of 13 years. (iii) External Examination: The victim was of normal build and fully conscious. No external injuries were found on her body, and her secondary sexual characteristics were fully developed. (iv) Internal Examination: No injury was detected on the private parts of the victim. Her hymen was found to be old and torn.” 32 47. PW-4 stated that she prepared two slides and one swab for chemical analysis, sealed them, and handed them over to the same constable. She further stated that she could not opine with certainty whether the victim was subjected to forcible sexual intercourse. Her medical report is Ex.P/6 and bears her signatures. She further deposed that on the same date, a sealed paper-wrapped packet containing a dark blue cotton underwear with white spots was submitted to her for examination. She marked and re-sealed the article and advised that it be sent for chemical analysis. Her report in this regard is Ex.P/7. Similarly, another packet containing a black cotton towel with white spots was produced before her. After marking and sealing the article, she advised its chemical examination. Her report is Ex.P/8. 48. In cross-examination, she admitted that she did not find any external injury on the victim. She further stated that she had not read the police forwarding memo relating to the underwear and towel. 49. Further, the seized articles were duly forwarded for chemical examination. The Forensic Science Laboratory, upon analysis of the vaginal slides, swab, underwear, and towel, did not detect the presence of semen, spermatozoa, or any other biological material indicative of recent sexual intercourse. The FSL report, therefore, has been found to be negative. 33 50. 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 leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do so in the instant case. 51. 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 rape upon her, rather it reflects from the evidence that the victim herself had made physical relations with the appellant and she has not made any complaint to anyone and has not raised any alarm. Had she been forcefully raped against her will or consent, she would definitely raise alarm or to make complaint to anyone. Since, it is held that the victim is not below the 18 years of age, she is capable to give her consent and therefore, it cannot be said that the appellant procured a minor girl with the intention to illicit intercourse or committed rape upon her. 52. Having carefully considered the rival submissions and meticulously evaluated the evidence on record, this Court finds that the prosecution has failed to establish the charge of rape against the appellant beyond reasonable doubt. Although the 34 prosecution placed reliance upon the testimony of the victim (PW- 2), which in law can be sufficient to sustain a conviction if wholly reliable, a close scrutiny of her deposition reveals material inconsistencies, omissions, and conduct that render her version doubtful and not free from inherent improbabilities. 53. The victim has herself admitted in her cross-examination that she was educated, understood right and wrong, and had known the appellant for about one year prior to the alleged incident. She further admitted that she initially accompanied the appellant of her own volition “to go for a walk,” left home without informing her family, and travelled with him across several towns, villages, buses, railway stations, and even crowded religious places without raising any alarm, seeking help, or informing anyone that she was being forcibly taken. Such conduct, though not determinative by itself, significantly weakens the prosecution’s narrative of continuous force, threat, and coercion. 54. The medical evidence adduced through PW-4, Dr. Dharani Patel, also does not support the allegation of recent forcible sexual intercourse. The doctor found no external injuries, no internal injuries, and an old, torn hymen, and categorically stated that she could not opine whether the victim was subjected to force. The Forensic Science Laboratory report further reveals that the vaginal slides, swabs, underwear, and towel tested negative for semen or spermatozoa, thereby offering no scientific 35 corroboration to the prosecution’s claim of repeated forcible sexual assault. 55. The testimony of PW-1 (mother) and PW-3 (uncle), though supporting certain peripheral facts, is based largely on what was allegedly told to them by the victim and does not independently establish the allegations of rape. Their statements also reflect uncertainty regarding dates, age, and crucial details. Notably, even the mother (PW-1) admitted that she could not state either her own or the victim’s date of birth and that the missing report was lodged only the next morning. 56. It is well settled that while the testimony of the victim must be given due weight, the Court must ensure that it inspires confidence and is consistent with the normal course of human behaviour. When the version of the victim suffers from inherent improbabilities and is contradicted by objective medical and forensic evidence, the Court is bound to extend the benefit of reasonable doubt to the accused. The recent judgment of the Hon’ble Supreme Court in Tilku @ Tilak Singh (supra), reiterating the principles in S. Varadarajan (supra), also emphasizes that when a girl near the age of discretion voluntarily accompanies a person without inducement or force, the element of “taking” or “enticement” is not automatically established. 57. In the present case, the cumulative effect of the prosecution evidence, when tested on the touchstone of probability, 36 consistency, medical corroboration, and legal standards, leads this Court to the unmistakable conclusion that the prosecution has fallen short of proving the essential ingredients of the offence of rape. The evidence does not establish, beyond reasonable doubt, that the appellant committed sexual intercourse with the victim forcibly or against her will. The contradictions, the absence of injuries, the negative FSL report, the conduct of the victim in accompanying the appellant across multiple locations without protest, and the lack of independent corroboration collectively create serious doubt regarding the prosecution case. 58. In criminal jurisprudence, suspicion, however strong, cannot take the place of proof. When two possible views emerge from the evidence, one pointing to the guilt of the accused and the other suggesting innocence, the latter must be adopted. 59. In view of the above, the Court is of the considered opinion that the prosecution has not proved the offences under Sections 363, 366 of the IPC and 6 of the POCSO Act beyond reasonable doubt. The evidence reflects that the relationship between the appellant and the victim was consensual, and the allegations of abduction and rape are not supported by credible material. 60. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant for committing the aforesaid crime, as such, appellant is entitled for acquittal by giving him benefit of doubt. 37 61. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 27.07.2024 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail since 26.12.2023. He be released forthwith, if not required in any other case. 62. Keeping in view the provisions of Section 437-A CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 63. The trial Court record along with the copy of this judgment be sent back forthwith to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Anu