1 2025:CGHC:56878-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 412 of 2022 Sayed Ali S/o Late Mustaque Ali, Aged About 30 Years R/o Village Khamariya, P.S. Moudaha, District Hamirpur (U.P.) Presently R/o Near Lalpur Patwari Office, Khanbada, P.S. Tikrapara, District Raipur Chhattisgarh. --- Appellant(s) versus State Of Chhattisgarh Through The S.H.O. P.S- Vidhansabha, District Raipur Chhattisgarh. --- Respondent(s) For Appellant(s) : Mr. Adil Minhaj, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer CRA No. 1969 of 2022 Imam Khan S/o Mohammad Khan Aged About 26 Years R/o Village Mutni, Police Station Bewar, District Hamirpur (U.P.) At Present Bsup Colony, Block No. 04/09, Bhathagaon, Purani Basti, District Raipur Chhattisgarh ---Appellant(s) Versus State Of Chhattisgarh Through Police Station Vidhansabha, Raipur Chhattisgarh --- Respondent(s) MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.11.27 10:53:08 +0530 2 For Appellant(s) : Mr. Pawan Kumar Kesharwani, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 24.11.2025 1. Heard Mr. Adil Minhaj and Mr. Pawan Kumar Kesharwani, learned counsel, appearing on behalf of respective appellant. Also heard Mr. Shailendra Sharma, learned Panel Lawyer, appearing on behalf of the State/respondent. 2. I.A. No.03/2025 is an application for grant of ad-interim relief in CRA No. 03/2025. 3. Learned counsel for the appellant-Imam Khan submits that the I.A. No.03/2025 i.e. application for grant of ad-interim relief has become infructuous. In view of the above, I.A. 03/2025 is dismissed as infructuous and the matter is heard finally. 4. These appeals are directed against the judgment of conviction and order of sentence dated 26.02.2022 passed by the Additional Sessions Judge, Second Fast Track Special Court, Raipur, District- Raipur (C.G.) in Special Criminal (POCSO) Case No. 33/2019 whereby the appellant-Sayed Ali has been convicted for the offence punishable as under: 3 Conviction under Section Sentence (Rigorous imprisonment) Fine In default of payment of fine R.I. Section 363 of the IPC 5 years Rs. 2000/- 3 months Section 366 of the IPC 5 years Rs.2000/- 3 months Section 376(3) of the IPC r/w Section 4 of the POCSO Act 20 years Rs. 5000/- 6 months All sentences have been directed to run concurrently. 5. Appellant- Imam Khan has been convicted as under: Conviction under Section Sentence (Rigorous imprisonment) Fine In default of payment of fine R.I. Section 363 of the IPC 5 years Rs. 2000/- 3 months Section 366 of the IPC 5 years Rs.2000/- 3 months Section 109/376(3) of the IPC. 20 years Rs. 5000/- 6 months All sentences have been directed to run concurrently. 6. The prosecution story in brief is that on 22/05/2019, a missing person report number 37/19 was registered in Diary No. 44, stating that the victim, aged 14 years, 5 months, and 4 days, had gone somewhere without informing anyone since 2:30 pm on 4 21/05/2019, and that an unknown person had abducted her without her parents' permission. Upon receiving information from the victim's mother, a First Information Report was registered under Section 363 of the Indian Penal Code under Crime No. 212/2019. A site map was prepared at the scene. On 23/05/2019, at 5:30 am, the victim was recovered from car bearing registration No. CG 04 MH 2709 in the Tikrapara Police Station, under the Lalpur jurisdiction. 7. The victim's undergarments were seized. The victim, along with the undergarments, was sent for examination before a medical officer after her consent. A Samsung mobile phone was seized from the victim. The victim's statement was recorded by a female police officer, in which she stated that she had gone to her aunt's house on 21.05.2019, stayed elsewhere overnight, and arrived in Raipur by bus on 22.05.2019, where she met auto driver, accused Imam Khan. He, along with his accomplice accused Syed Ali, took the victim to Kharora in car bearing registration No. CG 04/MH 2709, under the pretense of dropping her home. Khan molested the victim and told accused Syed Ali, referring to her, "Go enjoy yourself." Imam Khan then left the victim with accused Syed Ali, who then raped her. Ali's undergarments were seized from accused Syed Ali. The accused and his undergarments were presented to a medical officer for examination. The victim was tried for judicial examination under Section 164 of the CrPC. A statement was recorded in the Court of the Magistrate First 5 Class. The victim was identified as the accused. A caste certificate was seized regarding the victim's caste. A white Zest car beaing No. CG 04 MH 2709, along with a Samsung mobile phone and a white Vivo mobile phone, were seized from Lalpur Basti. The car's documents were seized from Kaleem Khan. Regarding the victim's age, the mutation register was seized from her school, which records her date of birth as 25/12/2004. A site map and a Patwari map of the incident were prepared. Following the victim's examination, the vaginal slide and undergarments obtained, along with the undergarments of accused Syed Ali, were sent to the State Forensic Science Laboratory for testing. The victim was produced before the Child Welfare Committee for counseling and was subsequently counseled. Accused Syed Ali and accused Imam Khan were asked to provide details regarding the medication administered to the victim. A notice was issued, in which they stated that they had no medication for the victim and that they had no medication themselves. Test reports were obtained from the State Forensic Science Laboratory. The accused were arrested. Their families were informed of the arrests. Witness statements were recorded. After the completion of other investigations, a charge sheet was presented against the accused before the concerned Court. 8. Accused Syed Ali was charged under Sections 363, 366, 376 (3) of the IPC, Section 6 of the POCSO Act and Section 3 (2) (V) of the Scheduled Castes and Scheduled Tribes (Prevention of 6 Atrocities) Act, and accused Imam Khan was charged under Sections 363, 366, 376 (3) of the IPC read with Section 109 of the IPC, Section 4 of the Protection of Children from Sexual Offences Act read with Section 17 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. After the charges were read out, read out and explained to them, the accused denied having committed the crime. 9. The prosecution examined a total of 20 witnesses in its support. A total of 43 documents have been marked as exhibits. 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. 11. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellants and sentenced them as mentioned in the 4th and 5th paragraph of this judgment. Hence this appeal. 12. Learned counsel for the appellant-Sayed Ali submits that the appellant is innocent of all the allegations levelled against him. It is contended that the prosecution has failed to prove beyond reasonable doubt that Syed Ali committed any offence alleged under the relevant sections. The identification of the appellant by the alleged victim is doubtful and inconsistent, and the procedure adopted during identification is defective. Further, the medical and forensic evidence does not link the appellant to the alleged 7 offence in any manner. Counsel emphasizes that there are material contradictions in the statements of the prosecution witnesses, and several witnesses have turned hostile or given testimony that does not support the prosecution case. The conduct of the alleged victim, including accompanying the appellant voluntarily to multiple locations without any protest, is entirely inconsistent with the assertion of coercion or assault. 13. Learned counsel further submits that the prosecution has not established any overt act or mens rea on the part of Syed Ali that could constitute abetment or participation in the alleged offences. It is argued that mere presence at the scene or association with the co-accused cannot be equated with active involvement in the commission of the offence. Counsel urges that the benefit of doubt, being a fundamental principle of criminal jurisprudence, must be extended to the appellant in light of the inconsistencies, absence of independent corroboration, and deficiencies in evidence. Considering all aspects, it is submitted that there is no legally tenable basis to sustain the conviction, and Syed Ali is entitled to acquittal. 14. Learned counsel for the appellant-Imam Khan submits that the appellant is not guilty of the charges levelled against him under Sections 109 IPC or any other provision. It is contended that there is no credible or cogent evidence to show that Imam Khan had any knowledge, intention, or active role in the commission of 8 the alleged offences. The prosecution has relied solely on the testimony of the alleged victim, which is inconsistent, contradictory, and unreliable, especially regarding the appellant’s identification. There is no independent corroboration, no forensic or electronic evidence implicating Imam Khan, and no eyewitness testimony linking him to any act of abetment. Mere presence at the scene or providing transport cannot, in law, amount to abetment unless the essential elements of instigation, intentional aid, or facilitation are proved, which are entirely missing in this case. 15. Learned counsel further submits that the prosecution has failed to establish the mens rea or overt act required for abetment under Section 109 IPC. The victim herself admitted that she did not know the appellant personally, and there were procedural defects in the identification process conducted by the police. Considering these deficiencies, inconsistencies in statements, and absence of independent supporting evidence, there exists substantial doubt regarding Imam Khan’s involvement. In accordance with the principle that the benefit of doubt must go to the accused, it is submitted that Imam Khan cannot be held liable, and his conviction cannot be sustained. He is therefore entitled to be acquitted. 16. On the other hand, learned counsel for the State supported the impugned judgment and submitted that the trial Court has rightly 9 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. Learned State Counsel contends that the prosecution has been able to establish the case with utmost clarity through the coherent, consistent and corroborative evidence brought on record. It is urged that the statements of the victim, her parents, the medical officer, and the Investigating Officer are in complete harmony and clearly implicate the accused–appellants in the commission of the offence. The victim has given a natural, consistent and believable account of the incident, which stands further strengthened by the medical findings and the FSL report, wherein the presence of semen and human spermatozoa was detected on her undergarments and vaginal smear. It is further submitted that the recovery of the victim from the company of the accused, the seizure of the vehicle used in the offence, the recovery of the mobile phones, and the contemporaneous documentary evidence in the form of seizure memos, spot maps and medical reports form a chain of unbroken circumstances pointing unerringly to the guilt of the accused. The State Counsel emphasises that the victim was a minor, her date of birth being 25.12.2004, as proved through the school records and mutation register, and therefore any alleged consent has no legal significance. Hence, the Trial Court has 10 rightly held that the prosecution has proved the charge of kidnapping and sexual assault beyond all reasonable doubt. 17. Learned State Counsel further submits that the statutory presumptions contained under Sections 29 and 30 of the POCSO Act come squarely into operation in the present case. Once the prosecution produced the foundational evidence establishing that the victim was a minor and that sexual assault had occurred, the burden shifted upon the accused to rebut the presumption of guilt and culpable mental state. The accused, however, failed to discharge this burden, as no substantive defence evidence was produced and no credible material was brought on record to discredit the prosecution witnesses. It is argued that the Trial Court has meticulously examined the testimony of each witness, the medical and forensic reports, and the documentary evidence, and has assigned clear reasons for holding the accused guilty. The seriousness of the offence, the vulnerability of the minor victim, the cogent scientific evidence, and the consistent testimonies make the conviction fully justified. The State therefore submits that the appeal does not raise any arguable point, that the conviction is based on reliable, trustworthy and legally admissible evidence, and that no case is made out and the present appeals are liable to be dismissed. 18. We have heard learned counsel for the parties at length and have carefully perused the entire record of the trial Court with utmost 11 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. 19. 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 ? 20. 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 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. 21. In order to prove the age of the victim as minor, although the prosecution relies heavily on the school admission register (Ex. P-18/18C) to assert that the victim’s date of birth is 25-12-2004, 12 this document cannot be treated as reliable or conclusive proof of age. The Assistant Teacher (PW-4) himself admitted in cross- examination that no birth certificate was produced at the time of entry of the date of birth in the register, nor was any document issued by a competent statutory authority verified before making the entry. His admission that the date of birth was entered solely on the basis of a previous Transfer Certificate whose author was never examined and whose authenticity was never established renders the entire entry vulnerable. Under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, such school records carry weight only when it is shown that the information was entered on the basis of a reliable and contemporaneous source, which has not been demonstrated in the present case. 22. Further, the prosecution’s own evidence suffers from internal inconsistencies. The victim (PW-1) stated that her date of birth is 25-12-2004, while her mother (PW-2) asserted that the “real” date of birth is 05-07-2004 but that the school incorrectly recorded it as 25-07-2004. Thus, there are three different dates of birth given by prosecution witnesses: 05-07-2004, 25-07-2004, and 25-12-2004. These contradictions are material and strike at the root of the prosecution’s burden. When the prosecution itself presents mutually inconsistent versions, the Court cannot pick one favourable version and discard the rest, the law requires proof 13 beyond reasonable doubt, not on the basis of speculation or presumption. 23. Importantly, the prosecution did not examine the Headmaster, whose signature allegedly appears on the admission register (Ex. P-18). He was the only competent person who could have explained the source of the information, the basis on which the date of birth was entered, and whether any supporting document was ever verified. Instead, the Assistant Teacher (PW-4) admitted that he had no personal knowledge about the entry, that he did not verify any document himself, and that he could not say whether the parents had supplied the date merely by guesswork. In the face of these categorical admissions, the non-examination of the Headmaster creates a serious evidentiary gap. The prosecution cannot rely on a document whose author and origin remain unproved. 24. On a comparative analysis of the materials placed on record, this Court finds that: (i) No primary birth record has been produced; (ii) The school register entry is unproved, uncorroborated, and not shown to be based on contemporaneous data; (iii) The maker of the record has not been examined; (iv) The initial admission record is withheld; (v) No medical age determination has been conducted; and 14 (vi) The prosecution has failed to show that the entry was made in the ordinary course of business or on the basis of information supplied by a competent person. 25. Moreover, the prosecution failed to produce the birth certificate issued by the appropriate statutory authority- Municipal Corporation/Municipality/Panchayat which is the primary and most reliable evidence under Section 94(1)(ii) of the Juvenile Justice (Care and Protection of Children) Act. No explanation was offered for its non-production, despite PW-2 (mother) and PW-8 (grandfather) being fully capable of producing such a certificate if it existed. In such circumstances, the settled law is that courts must draw an adverse inference against the prosecution for withholding the best evidence. The Supreme Court has repeatedly held that when the prosecution deliberately suppresses the most reliable document and instead relies on secondary, unverified school entries, the benefit of doubt must go to the accused. 26. 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 15 source 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; 16 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 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 17 not conclusive, but it has evidentiary value. Such evidentiary value of a school register is 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, 18 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 : “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 19 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. 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 20 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. 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 21 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. 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. " 27. Reverting to the facts of the present case in the light of abovementioned judgment, Considering the cumulative effect of the above deficiencies, absence of a genuine primary document, contradictory dates of birth from prosecution witnesses, failure to examine the author of the key record, and the admissions of PW- 4 regarding lack of verification, it is evident that the prosecution has utterly failed to establish the victim’s age with the degree of certainty required in a criminal trial. At best, the evidence creates doubt, at worst, it demonstrates clear unreliability. In either situation, the law mandates that such doubt must operate in favour of the accused. Consequently, the prosecution has not proved beyond reasonable doubt that the victim was below 18 years of age on 21–22.05.2019, and therefore the statutory presumptions under the POCSO Act do not arise. 22 28. The next question for consideration would be whether the prosecution has proved beyond reasonable doubt that the victim (PW-1) was kidnapped or taken away from the lawful guardianship of her parents on 21–22/05/2019 by the appellants? 29. It is trite that once the element of minority becomes doubtful, the prosecution must then prove, through clear, cogent, and reliable evidence, that the victim was taken away without her consent and without the consent of her lawful guardians, or that the accused played an active role by employing force, inducement, pressure, or deceit. The burden to prove these foundational facts remains entirely upon the prosecution and does not shift merely because the victim was later found in the company of the accused. 30. In the present case, the prosecution primarily relies upon the testimony of the victim (PW-1), her mother (PW-2), and certain police witnesses to contend that the appellants lure the victim and took her away during the night of 21–22/05/2019. A careful evaluation of the evidence, however, reveals significant inconsistencies and omissions which strike at the root of the theory of forcible or deceitful taking. The victim (PW-1), in her examination-in-chief, does not attribute any overt act of physical compulsion, threat, or deceit to the appellants at the time of leaving home. There is also no allegation of resistance, alarm, or effort to raise any protest. The statement that she “went with” the accused lacks specific details and falls short of proving that the 23 accused had a culpable role in “taking” her away as contemplated under Section 361 IPC. 31. Further, the version narrated by PW-2 (mother of the victim) also fails to satisfy the legal requirement of “taking away from lawful guardianship.” The FIR (Ex. P-8) lodged by her merely states that the victim was not found at home and was later suspected to have gone with the appellants. Notably, PW-2 does not describe any prior inducement, threats, conversations, or actions by the accused which could have lured or compelled the victim to leave her house. Her deposition is based on assumption rather than direct knowledge. No neighbour, relative, or independent witness has been examined to support the prosecution’s theory that the appellants were present near the victim’s house at the relevant time or that they facilitated her departure in any manner. 32. Equally important is the conduct of the victim both immediately before and after the alleged incident. The evidence shows that she carried her personal belongings, travelled with the accused openly, and stayed at different places without raising any alarm or seeking help. The prosecution has not produced any call records or electronic evidence suggesting that the appellants contacted her on the night of departure or that they orchestrated her movement. The Investigating Officer (IO) also admitted that no inquiry was made to determine whether the victim voluntarily left home due to personal reasons unrelated to the accused. The 24 absence of investigation on these vital aspects creates a serious doubt regarding the prosecution’s theory of kidnapping. 33. The cumulative effect of these deficiencies is that the prosecution has failed to establish the essential legal ingredients of kidnapping—namely, (i) active participation by the accused in taking the victim away, and (ii) absence of consent on the part of the victim. Once the victim is not proved to be a minor and the evidence unmistakably points towards the possibility of voluntary departure, the offence of kidnapping cannot be made out. The law is clear that mere accompaniment or subsequent company cannot substitute the prosecution’s burden of proving “taking” or “enticing” beyond reasonable doubt. In view of these glaring gaps, contradictions, and the lack of independent corroboration, this Court is of the considered opinion that the prosecution has failed to prove the charge under Sections 361/363 IPC. 34. The next question that arises for consideration is whether the appellants have committed rape upon the victim or not? 35. 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 25 well-settled principles governing appreciation of evidence in sexual offence cases. 36. 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. 37. 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. 38. 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: 26 “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 27 was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….” 18. It is thus clear that the 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.” 39. The victim (PW-1), had deposed that she had a quarrel with her grandmother regarding household chores and left home on her own, taking Rs.100 from her mother’s purse. She admitted in cross-examination that she had not informed anyone in her family of her movements, and that her aunt, Sania, deliberately misled her mother about her whereabouts. This admission establishes that PW-1’s absence from home was voluntary, premeditated, and not the result of abduction or coercion. It also shows that she had the freedom to move independently, undermining the prosecution’s claim that she was forcibly taken or controlled by Syed Ali. 28 40. In her cross-examination, PW-1 admitted that she did not know the accused Syed Ali personally, and that she was told by the police to identify him as the driver who allegedly raped her. She clearly stated that the person in court was not the same Syed Ali who was involved in the incident. This is a critical admission because the identity of the accused is the most essential element in sexual assault cases. PW-1’s admission of police-tutored identification directly undermines any claim of eyewitness reliability and establishes that Syed Ali was falsely implicated. 41. PW-1 further admitted during cross-examination that neither the auto driver nor the car driver misbehaved with her during the journey from Raipur to Kharora. She voluntarily referred to them as “brother” and they called her “sister,” indicating cordial interaction rather than assault. She also admitted that she was free to get off the vehicle at any time and was not restrained or threatened. These admissions directly contradict the prosecution’s narrative of rape and establish that the alleged incident of sexual assault could not have occurred as described. These facts make the prosecution’s account inherently improbable. Moreover, PW-1 had already married by the time of her statements, which further raises questions regarding her claimed “minor” status and her motivations in falsely implicating the accused. 29 42. Most crucially, PW-1 admitted in court that Syed Ali did not commit rape or molestation. She clarified that she previously identified him only at the behest of the police, and that the person in court is not the individual involved. Additionally, the witness herself disclosed that she had entered into a love marriage, highlighting that she was an adult capable of making personal choices at the time. Her marital status, combined with her voluntary movements, contradictions in testimony, and inability to identify the accused, completely exonerates Syed Ali. The prosecution has therefore failed to establish his guilt beyond reasonable doubt, and it is clear that Syed Ali has been falsely implicated. 43. Furthermore, identification panchnama was conducted by the investigating officer (PW-9) himself, without inclusion of impartial fillers of similar age, height, or stature. This is a fundamental procedural defect. Cross-examination confirms that the accused were already in custody at the time of the identification, which compromises the impartiality and reliability of the process. Legal precedent establishes that identification conducted under suggestive conditions cannot be treated as conclusive evidence. It is highly susceptible to suggestion and influence from the investigating officer. The absence of neutral fillers means PW-1 had limited alternatives to choose from, which raises serious questions about the independence of the identification. 30 44. Also, there were inconsistency and uncertainty in victim’s identification as the victim (PW-1) admitted that she did not know the accused Syed Ali personally at the time of the incident, nor did she know him by face. She acknowledged that the names of the accused were communicated by the police and that she was prompted to identify Syed Ali as the car driver. In her own words, “the police showed the accused Syed Ali and said that he was Syed Ali.” Such an admission underscores that her identification was influenced and guided, rather than being a spontaneous and reliable recollection. 45. The identification panchnama was not conducted in a neutral, controlled environment. PW-1’s testimony reveals that the police did not provide multiple persons of “normal stature” to act as fillers. A critical safeguard to avoid forced or accidental selection. The panchnama was also conducted without independent witnesses beyond police personnel, making it a closed procedure with inherent bias. Courts have repeatedly held that identification evidence obtained under such conditions cannot form the sole basis for conviction, particularly when the witness admits uncertainty about the accused’s identity. 46. PW-1 consistently admitted that the Syed Ali present in court is not the person who allegedly raped her. She further stated that she identified him on the instructions of police. This admission casts a shadow over the reliability of the panchnama, which was 31 supposed to confirm identity. A panchnama is only valuable if the witness can independently and confidently identify the accused. Here, the witness’s own admission shows that the identification was constructed, not spontaneous, and is therefore vitiated and unreliable. 47. Given the procedural flaws, suggestive conduct by the police, lack of impartial fillers, and PW-1’s admissions of uncertainty and external prompting, the panchnama fails to satisfy the legal standard of proof beyond reasonable doubt. Identification proceedings in sexual offence cases carry heightened importance due to the absence of other independent corroboration. When the panchnama itself is unreliable, the prosecution’s reliance on it to link Syed Ali to the crime is legally untenable. 48. So far as the medical evidence is concerned, Dr. Pratima Sharma (PW-17) examined the victim PW-1 on 23/05/2019 and noted a 2 x 2 mm abrasion near her genital area and a torn hymen, opining that sexual intercourse was likely to have taken place within 24 hours prior to examination. PW-17 also prepared two vaginal slides and marked a white spot on the victim’s underwear for chemical analysis. The State Forensic Science Laboratory report (Ex. P-40) indicated the presence of semen stains and human sperm both on the vaginal slides and on the underwear of PW-1. The report also mentions the presence of semen stains and 32 human sperm on the underwear allegedly belonging to accused Syed Ali. 49. However, a critical scrutiny of this evidence reveals significant gaps. No DNA profiling or comparative testing was conducted to conclusively link the biological material on the victim’s slides or garments to Syed Ali. Mere detection of sperm or semen without scientific comparison cannot establish the identity of the perpetrator. Furthermore, procedural safeguards regarding the chain of custody of exhibits appear inadequate. There is no clear record confirming continuous, sealed, and uncontaminated handling of the slides and garments between collection and laboratory examination. PW-17 herself admitted that the slides and underwear were sent for chemical examination, but the report does not independently verify the accused as the source. Therefore, while the medical examination may indicate sexual activity, it cannot, by itself, prove the involvement of Syed Ali. 50. In her testimony, PW-1 gave inconsistent statements about the alleged assault, with variations regarding the time, place, and circumstances of the incident. While the prosecution emphasizes that the victim’s genital injuries and torn hymen constitute corroborative evidence, the defence submits that these injuries, combined with PW-1’s voluntary movements, her interactions with multiple individuals, and her prior sexual history (including marriage), significantly undermine the assertion that the assault 33 was committed by the accused. PW-1 admitted in cross- examination that she was married and had prior sexual relations, which introduces the possibility that genital findings could arise from consensual activity rather than an alleged assault. 51. Legally, the definitions of rape under Section 375 of the IPC and penetrative sexual assault under Section 3 of the POCSO Act encompass non-consensual penetration, whether by the penis or any object or body part, in the case of minors. It is undisputed that PW-1 was a minor at the relevant time (21–22/02/2019), and thus the statutory framework categorizes any sexual penetration as penetrative sexual assault. However, even within this framework, the act must be linked beyond reasonable doubt to the accused. Given the absence of DNA confirmation, contradictions in PW-1’s testimony, and procedural lapses in collection and examination of forensic evidence, the prosecution has not established a clear, unbroken chain connecting Syed Ali to the act. 52. Therefore, while the MLC and FSL reports suggest the occurrence of sexual activity involving the minor victim, these alone are insufficient to conclusively prove that Syed Ali committed the assault. Combined with the inconsistencies in the victim’s statements, the procedural defects in forensic handling, and her prior sexual history, the evidence remains inconclusive and raises significant doubts regarding identity. In line with the 34 legal principle that benefit of doubt must go to the accused, the medical and forensic evidence cannot be treated as definitive proof of Syed Ali’s guilt. 53. The next question for consideration is Whether the prosecution has proved the charge of abetment under Section 109 IPC against the accused / appellant Imam Khan? 54. Before examining evidence, it is necessary to recapitulate the legal standard. Under Section 109 IPC, abetment requires proof of intentional aiding, instigation or active participation in the commission of the principal offence. Mere presence, knowledge, or familial relationship with the principal accused does not constitute abetment unless there is clear evidence of: (i) mens rea, (ii) overt act, or (iii) active facilitation. The law is well settled that abetment cannot be inferred on conjecture, it must be based on specific, credible and cogent evidence showing the accused’s deliberate involvement. 55. While considering the alleged role of accused Imam Khan in the events of 21-22/02/2019, several points emerge that significantly weaken the case against him. 56. The victim (PW-1) herself, in her testimony under Section 164 CrPC (Exhibit P-5) and in cross-examination, does not 35 consistently state that Imam Khan molested or physically assaulted her. The allegations regarding him are limited to her being transported in his auto and allegedly being instructed to “go and enjoy himself,” while the actual sexual assault was allegedly committed by Syed Ali in the car. Notably, PW-1 admitted during cross-examination that Raipur is a large city with many auto drivers named Imam Khan, making it uncertain whether she correctly identified the accused as the person involved. She also conceded that she did not know him personally before the incident. 57. Importantly, there is no independent corroborative evidence linking Imam Khan to the crime. The police and other prosecution witnesses have not provided testimony showing that Imam Khan had knowledge of or intent to facilitate the sexual assault. His presence in the car at the time does not, on its own, establish abetment. There are no phone records, CCTV footage, or eyewitness accounts to demonstrate that Imam Khan instigated, aided, or encouraged the rape. Mere proximity or transport of the victim, without clear intent or mens rea, is insufficient to establish criminal liability for abetment under Sections 107, 108, or 109 IPC. 58. Additionally, PW-1’s own statements are inconsistent and evolving. In her Section 164 statement, she does not mention molestation by Imam Khan, only the act by Syed Ali. The 36 discrepancies between her police statement, her statement to the magistrate, and her court testimony further undermine the reliability of her account regarding Imam Khan’s involvement. The absence of contemporaneous evidence indicating that Imam Khan had intent or actively aided the commission of rape raises serious doubts about criminal liability. 59. Given these circumstances, there exists reasonable doubt regarding Imam Khan’s involvement. Indian criminal law mandates that the benefit of doubt must go to the accused when evidence is ambiguous or inconsistent. The prosecution has failed to establish beyond reasonable doubt that Imam Khan either instigated, aided, or abetted the commission of rape or penetrative sexual assault. His role appears limited to providing transportation, without any direct or intentional contribution to the sexual assault. 60. In conclusion, based on PW-1’s own testimony, the lack of corroborative evidence, inconsistencies in statements, and the absence of demonstrable intent or participation, the accused Imam Khan cannot be held guilty of abetment. The legal standard of proof beyond reasonable doubt is not met. 61. 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 37 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. 62. After careful consideration of the entire record, including oral and documentary evidence, this Court finds that the prosecution has not succeeded in establishing the charges against the appellants beyond reasonable doubt. The material on record reveals several inconsistencies, gaps, and lapses that cast serious doubt on the prosecution case: • Age of the Victim: There is no conclusive proof that the victim was a minor at the time of the incident. Multiple and contradictory dates of birth were presented by the witnesses, and no authoritative record was produced to establish her exact age. The evidence relating to age remains uncorroborated and inconsistent, which weakens the foundation of the offences alleged under the relevant statutes. • Voluntariness and Circumstances of Departure: The evidence indicates that the victim left her home voluntarily, driven by personal reasons and familial disputes. There is no credible proof to suggest that she was forcibly taken or coerced by the appellants. The circumstances demonstrate that she exercised 38 her own choice and independent action, which is inconsistent with the prosecution’s allegation of abduction. • Identification of the Accused: The identification of the appellants by the victim was conducted under suggestive circumstances, without sufficient safeguards to ensure impartiality and reliability. Witness testimony about identification is inconsistent, and there is significant doubt whether the accused were correctly identified at the relevant time. • Medical and Forensic Evidence: While medical and forensic reports indicate the presence of biological material, the evidence does not conclusively link it to the appellants. The chain of custody, verification, and corroboration of these materials are insufficient. Moreover, admissions by the victim regarding prior sexual activity further raise doubts about the source of the material. • Participation of the Second Accused: The evidence presented against the second appellant is limited to minor involvement, such as providing assistance or transport. There is no evidence of intent, knowledge, or active participation in the commission of the alleged offences. • Overall Reliability of Evidence: The cumulative effect of inconsistent witness statements, procedural lapses, defective identification, and inadequate corroboration seriously undermines 39 the prosecution case. The essential elements of the alleged offences have not been established beyond reasonable doubt. 63. The Court notes that in criminal proceedings, the presumption of innocence is a fundamental principle. Every accused is entitled to be presumed innocent until proven guilty by credible and reliable evidence. Any doubt in the prosecution’s case must be resolved in favor of the accused. The standard of proof in criminal cases is “beyond reasonable doubt,” which is a high standard. This Court finds that in the present case, the prosecution has failed to meet this standard. Doubts arising from contradictions, incomplete evidence, or unreliable testimony must weigh in favor of the appellants. 64. Criminal law requires that convictions be grounded on solid, credible, and corroborated evidence. Mere allegations, probability, or suspicion cannot form the basis for conviction. The Court must examine evidence critically and weigh all circumstances before arriving at a conclusion. The Court also observes that procedural safeguards are essential in ensuring a fair trial. Improper or suggestive identification, lack of reliable forensic verification, and inconsistencies in testimony weaken the prosecution’s case and justify acquittal. 65. 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 40 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. 66. In the present case, the cumulative effect of the prosecution evidence, when tested on the touchstone of probability, consistency, medical corroboration, identification procedure 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 medical evidence, including forensic reports, does not conclusively link either appellant to the alleged sexual activity, and there is a lack of continuous chain of custody or scientific comparison to establish the identity of the perpetrator. The conduct of the victim, who voluntarily accompanied the accused across multiple locations without protest, further undermines the prosecution narrative of coercion or assault. 67. In criminal jurisprudence, suspicion, however strong, cannot take the place of proof. When two possible views emerge from the 41 evidence, one pointing to the guilt of the accused and the other suggesting innocence, the latter must be adopted. 68. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellants for committing the aforesaid crime, as such, appellants are entitled for acquittal by giving them benefit of doubt. 69. In the result, the appeals are allowed. The impugned judgment of conviction and order of sentence dated 26.02.2022 is set aside. The appellants are acquitted from all the charges leveled against them. The appellants are stated to be in jail. They be released forthwith, if not required in any other case. 70. Keeping in view the provisions of Section 437-A CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellants are directed to forthwith furnish a personal bond (each) in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- (each) with one surety (each) 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. 42 71. 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 Manpreet