1 2025:CGHC:5537-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR (Judgment reserved on 20.01.2025) (Judgment delivered on 30.01.2025) CRA No. 292 of 2019 1 - Ram Yadav S/o Kumar Yadav Aged About 22 Years R/o Village Mokha Police Station Gurur, District Balod, Chhattisgarh. 2 - Kumari Durga Yadav D/o Kumar Yadav Aged About 18 Years R/o Village Mokha Police Station Gurur, District Balod, Chhattisgarh. --- Appellants versus 1 - State of Chhattisgarh through the Station House Officer Police Station Gurur, District Balod Chhattisgarh. --- Respondent CRA No. 477 of 2019 1 - Pramod Sen S/o Late Lekhram Sen Aged About 28 Years R/o Village- Mokha, Police Station- Gurur, District- Balod, Chhattisgarh. --- Appellant Versus A ANNAJEE RAO Digitally signed by A ANNAJEE RAO 2 1 - State of Chhattisgarh through the Station House Officer, Police Station- Gurur, District- Balod, Chhattisgarh. --- Respondent For the appellants : Mr. Govind Ram Miri, Sr. Advocate with Mr. Veer Verma & Mr. Abhishek Banjare, Advocates. For the State : Mr. H.A.P.S. Bhatia, Panel Lawyer Division Bench Hon’ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal C.A.V. Judgment Sanjay Kumar Jaiswal, J, 1. These appeals under section 374(2) of CrPC are directed against the judgment of conviction and order of sentence dated 08.02.2019 passed by the learned Sessions Judge, Balod Distt. Balod, Chhattisgarh in Special Criminal Case (POCSO) No. 116 of 2017 whereby the appellants have been convicted and sentenced as under : (i) Conviction and sentence of appellant Kumari Durga Yadav U/s 363 of IPC : RI for 3 years and fine amount of Rs.500/- in default of payment of of fine, additional RI for 2 months U/s 366 of IPC : RI for 5 years and fine amount of Rs.1000/-, in default of payment of fine, additional RI for 2 months. U/s 376(2)(n)/ : Rigorous Life Imprisonment and fine 3 109 of IPC amount of Rs.1000/-, in default of payment of fine, additional RI for 3 months. U/s 342 of IPC for both the appellants RI for 1 year and fine amount of Rs.1000/-, in default of payment of fine, additional RI for 1 month. U/s 5(L)/6 of the POCSO Act read with Section 109 of IPC : Rigorous Life Imprisonment and fine amount of Rs.1000/-, in default of payment of fine, additional RI for 3 months (ii) Conviction & sentence of appellants Ram Yadav & Pramod Sen U/s 363 of IPC : RI for 3 years and fine of Rs.500/-, in default of payment of fine, additional RI for 2 months U/s 366 of IPC : RI for 5 years and fine of Rs.1000/-, in default of payment of fine, additional RI for 2 months. U/s 376(2)(n) of IPC : Rigorous Life imprisonment and fine of Rs.1000/-, in default of payment of fine, additional RI for 3 months U/s 506 Part-2 of IPC : RI for 1 year and fine of Rs.500/-, in default of payment of fine, additional Simple Imprisonment for 3 months U/s 5(Tha)/6 of POCSO Act, 2012 : Rigorous Life Imprisonment with fine of Rs.1000/-, in default of payment of fine, additional RI for 3 months. 2. Since the facts and evidence as also the question of law involved in both these appeals are similar, they are being decided by this common judgment. 3. By impugned judgment, co-accused Gulshan Kumar has been acquitted of the charges u/s 363, 366, 376(2)(n), 506 Part II IPC and Section 5(L)/6 of the POCSO Act read with section 109 of IPC. 4 4. The prosecution case in brief is that the complainant (PW-1) who was a school student of about 15 years of age, went to study in Kanya Uchcha Madhyamik Shaala, Gurur on 04/09/2017 in the morning. In the same school, the appellant Kumari Durga Yadav was a student of class 12th. Kumari Durga Yadav's brother is the appellant Ram Yadav. On the day of the incident, the appellant Durga Yadav, on the pretext of it being a friend's birthday, instigated the victim and brought her out of the school to the bus stand at about 01.50 pm where her brother, the appellant Ram Yadav and the appellant Pramod Sen were already present. The victim (PW-1) was taken on a motorcycle to a farm house in Sonaidongri, where the victim was taken inside a room, the appellant Durga Yadav locked the room from outside. Inside the room, the appellants Ram Yadav and Pramod Sen committed forcible sexual intercourse with the prosecutrix twice and further threatened to kill her if she discloses the incident to anyone. Next day at about 09.15 am, Ram Yadav dropped the complainant to her house along with his nephew Gulshan. The victim (PW-1) later disclosed the incident to her parents. Thereafter, on giving written report Exhibit P-5, FIR Exhibit P- 6 was registered at Police Station Gurur on 25/09/2017 and the prosecutrix was medically examined. The scene map of the incident was prepared; newspapers, water pouches and plastic glasses etc. were seized from there and Exhibit P-8 was prepared. The victim’s date of birth certificates were seized vide Articles A and B in which her date of birth was found to be 25/11/2002. Statements of witnesses were taken. The slides prepared by the doctor and the underwear of 5 prosecutrix and that of accused were sent to the State Forensic Science Laboratory for chemical examination, the test report of which was received as Exhibit P-32. After completing the investigation, the charge sheet was presented. The appellants denied the charges and claimed to be tried. 5. During trial, the prosecution examined in all 08 witnesses in support of their case and got a total of 32 documents marked as exhibits and presented two school certificates i.e., Article A and B. In the statement under section 313 of the Code of Criminal Procedure, the appellants denied the version of witnesses against them and pleaded innocence. In their defence, Jaiprakash Sinha (D.W.1) and Dujram (D.W.2) were examined. The trial court heard both the parties and after evaluating the evidence of witnesses, convicted and sentenced the appellants by the impugned judgment, which has been challenged in this appeal. 6.1 Learned senior counsel appearing for the appellants argued that the incident report has been filed with a delay of about 20 days. 6.2 His further contention is that the prosecution has failed to prove with clear evidence that the prosecutrix was a minor girl of below 18 years of age at the time of the incident and no witness has been examined to prove the Articles A & B presented regarding the date of birth. He further submits that even after medical advice, the age of the prosecutrix has not been tested. 6.3 He next contended that the slides and seized underwear allegedly prepared were sent to the laboratory with an inordinate delay, therefore 6 the report received from the FSL cannot be considered reliable beyond doubt. The appellants have been falsely implicated in the case. 6.4 He further contended that the prosecutrix was a consenting party with someone else and at the time of the alleged incident the appellants were present in the village, however, they have been falsely implicated in the case. 6.5 The prosecution has failed to prove the abduction or kidnapping of the prosecutrix by the appellants and the conviction of the appellants is not based on clear, sufficient and reliable evidence. Therefore the impugned judgment does not deserve to be upheld which needs interference by this Court. Learned counsel prays that by allowing the appeal, the appellants be acquitted. Learned counsel has cited the following judicial precedents in support of his argument:- (1) Ramdas another v. State of Chhattisgarh, AIR 2007 SC 155; (2) Jaiprakash Singh v. State of Bihar, AIR 2012 SC 1676; (3) Sudhanshu Shekhar Sahoo v. State of Orissa, AIR 2003 SC 2136; (4) Alamela v. State represented by police, AIR 2011 SC 715; (5) State of MP v. Munna alias Samlhi Napit, CRA No.-658 of 2011 SC; (6) Guddu Poem v. State of Chhattisgarh, CRA No.-101 of 2023 CGHC; (7) Vidyasagar Sahu v. State of Chhattisgarh, CRA No.-418 of 2020; (8) Kishanlal v. State of Chhattisgarh, CRA No.-565 of 2022. 7. Per contra, learned State Counsel submitted that the impugned judgment of conviction and order of sentence is well merited and the findings recorded by the trial Court cannot be said to be unjustified. He further submits that having regard to the evidence and circumstances 7 appearing against the appellants, the learned trial Court has rightly convicted and sentenced them, which needs no interference. 8. We have heard learned counsel for the parties and considered the rival submissions and have also perused the records of the trial Court. 9. The defence put-forward by the appellants, during cross examination of the prosecution witnesses in the case and in respect of which two defence witnesses have been examined by the appellants, would also be appropriate to be looked into at this stage so that the credibility of the evidence adduced by the prosecution can be assessed. 10. According to Jaiprakash Sinha (DW-1) and Dujram (DW-2), the prosecutrix is a resident of their village Mokha and lives in their locality. The date on which the incident is said to have taken place is 04 and 05 September, 2017. According to these defence witnesses, on that day a meeting of the Durga Utsav Committee was going on in the village, where the prosecutrix's father (PW-1) and grandfather came and told that the prosecutrix had gone to school but had not returned. Then in the meeting they were told to inquire about the whereabouts of the accused among their acquaintances and relatives. Later, they came to know that the prosecutrix was sent by her father to his elder brother's place in village Geetpahar, police station Charama, district Kanker, but this information was not given to the society or the meeting. After a week, when the meeting was held again regarding the prosecutrix, the appellants Ram Yadav and Pramod Sen were also present there. The 8 prosecutrix was also produced there on the instructions of the people in the meeting. On interrogation, the prosecutrix was taking names of her different friends and was telling about going to their houses and was misleading the society. Her friends were also called and interrogated, but the prosecutrix was not found to have gone to their houses, so the people in the society got angry with the prosecutrix’s side because the society was not being given the correct information by the prosecutrix and her family. Thus, the defence of the appellant side is that the prosecutrix was out of the house with someone else. In other words, neither the appellants were with the prosecutrix nor they molested or kidnapped the prosecutrix nor committed any other crime against her. 11. Keeping the above defence in view, the statement of the prosecutrix is being looked into first. 12. The prosecutrix (PW-1) has stated in her court statement that on 04/09/2017, when she had gone to School to study at Kanya Uchcha Madhyamik Shala, Gurur, during the lunch break, her senior student appellant Durga Yadav, asked her to go to her friend's birthday party and took her to Gurur bus stand where appellant Ram Yadav and appellant Pramod Sen were already present on a motorcycle. When she refused to go, appellant Durga Yadav said that one should obey the senior and made her sit behind appellant Ram Yadav on the motorcycle and she herself sat behind her. Then they reached the farm house of Sonaidongri, where the appellant Durga Yadav pushed the prosecutrix inside the room and locked the door from outside. In that room, appellant Ram Yadav and Pramod Sen turn-by-turn committed forcible 9 sexual intercourse by threatening to kill her. Next-day morning when the appellant Durga Yadav opened the door, she had come out. There the co-accused Gulshan came and the appellant Pramod Yadav asked him to drop her home. Then Gulshan dropped her on his motor cycle to village Mokha, where after a week she informed her mother about the incident and on 25/09/2017 she went to Gurur police station with her father and filed a report. The prosecutrix is the star witness in the case. 13. Before elaborately analyzing the evidence of the prosecutrix and other witnesses, the decision of Hon’ble the Supreme Court in Rai Sandeep alias Deepu versus State (NCT of Delhi) (2012) 8 SCC 21 is required to be referred to wherein it was held that the prosecutrix's evidence alone cannot be used to convict the accused persons in a rape case, unless she meets the criteria for a "Sterling Witness". The Supreme Court further held that prosecutrix's sole piece of evidence must be reliable, flawless, and of the highest caliber to be utilised to condemn the act of accused persons. The Hon’ble Court emphasised that the "sterling witness" should be of extremely high quality and caliber, whose version should, therefore, be impregnable. The said criteria laid down by Hon’ble the Supreme Court was widely followed in catena of cases including the decision rendered in Santosh Prasad alias Santosh Kumar versus State of Bihar (2020) 3 SCC cases 443, wherein it was reiterated that Court should be able to accept the testimony of such a witness at face value without any reservations. The extract of Para 6 of Santosh Prasad’s case (supra) is relevant and quoted hereinbelow : 10 “……...Therefore, when we tested the version of PW-5, prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix, PW 5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and the accused is to be given the benefit of doubt.” (Emphasis supplied) 14. In the light of the above judgment, first of all, we look at the medical evidence of the victim (PW-1) who was examined by Dr.( Mrs). R. Prasanno (PW-3). Dr. (Mrs) R. Prasanno in her statement has stated that she had medically examined the victim on 26/09/2017, i.e., about 20 days after the incident, and given a report, Exhibit P-11. According to which, no injury or scratch was found on the body or organs of the victim. Her menstruation had started on 16/09/2017 for four days. The hymen was completely ruptured. She had physical relations, but there were no signs of immediate intercourse. Then she had prepared two slides of vaginal discharge and advised for chemical examination. She has also revealed in cross-examination that human sperms remain alive for two-three days, after which they can remain in a dead state for about a month. If menstruation intervenes during this 11 period, the dead sperms present in the vagina come out. It is noteworthy that the incident report has been registered after about 20 days and the statement of the prosecutrix has not been supported by medical evidence. 15. In this case, according to the test report of the State Forensic Science Laboratory, Exhibit P-32, semen and human sperms have been found in the underwear of the prosecutrix, the slide of vaginal discharge, the slide of the appellant Ram Yadav, the underwear and slide of the appellant Pramod Sen. The presence of human sperms in the slide or underwear of the persons does not have any special significance in this case. But the presence of semen and human sperms in the underwear and the slide of vaginal discharge of the prosecutrix is a crucial fact. How human sperm was found in the slide 20 days after the incident is a matter of fact worth considering. 16. There is inordinate delay in collecting and subjecting the material i.e., slides prepared by the doctor and the inner wear of prosecutrix and accused for chemical analysis. To avoid the inordinate delay in receipt of FSL report, the above material should be collected immediately and should reach FSL immediately preferably within the stipulated time of 72 hours. In this case, that has not been done. This norm is salutary because any attempt at tampering with the slides prepared by the doctors or the undergarments seized from the prosecutrix /accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event. This Court is not oblivious of the legal position on this aspect. 12 In Santa Singh Vs. State of Punjab AIR 1956 SC 526, Hon’ble the Supreme Court held that if there exists a suspicious delay in sending the sealed parcel to the expert, the result is vitiated. 17. In this case, the incident is said to have taken place on 04 and 05 September, 2017. The medical examination of prosecutrix and her slides were prepared on 26/09/2017 i.e. about 21-22 days later. The said material along with vests of prosecutrix and accused were deposited in the laboratory on 25/10/2017 i.e. about one month after the medical examination. No plausible explanation has been given as to where the said slides and underwears were preserved for this one month. This discrepancy completely shatters the prosecution case. The prosecution case regarding the safe custody of material right from the stage of taking sample till preparation of FSL report, should be beyond any shadow of doubt. On the other hand, the medical opinion also states that the menstruation of the prosecutrix had started and during menstruation, the dead sperms present in the vagina also come out along with the blood. In this situation, when the said slide and underwear were deposited in the laboratory about one month after their seizure, the FSL report becomes doubtful. It could not be ascertained that whether the human sperm or semen found in the underwear of the prosecutrix and in the slide of her vaginal discharge belonged to the appellants. In such a situation, the said chemical test report does not support the statement of the prosecutrix against the appellants. 18. The fact that the prosecutrix was a minor at the time of the incident has also been challenged by the appellants. It is also 13 noteworthy that Dr. Mrs. R. Prasanno (PW-3) had also advised to get the prosecutrix's age checked by a radiologist, but no ossification test report has been produced by the prosecution. The prosecutrix (PW-1) and her father (PW-2) have stated the prosecutrix's date of birth as 25/11/2002. Even after calculating from that date, the prosecutrix's age would be around 15 years. The prosecution has to prove the fact with sufficient evidence that the age of the prosecutrix was less than 18 years at the time of the incident. In this regard, the prosecution has produced the High School Certificate Examination mark sheet in Article- B regarding the date of birth of the prosecutrix and the birth certificate issued by the Finance, Planning, Economic and Statistics Department of the Government of Chhattisgarh in Article-A. No witness has been examined to prove the veracity of these documents and further to prove on what basis the date of birth of the prosecutrix was registered as 25/11/2002 and who got it registered. 19. 19. The Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder :- 14 “14. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. “14. …The date of birth mentioned in the scholar’s 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 in 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. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were 15 contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 20. Hon’ble the Apex Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has held that “the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 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 prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case that 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. 21. Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held that it is trite to render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible 16 under Section 35 of the Act but the entry regarding to 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. 22. The evidentiary value of Dakhil Kharij Register came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another (2008) 13 SCC 133, wherein it has been held as under:- “22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.” 23. The responsibility of providing primary information regarding the date of birth of any child is that of the parents. A person obtains information about his/her date of birth only on the basis of information given by the parents or the date of birth recorded in other documents. In this case, the father of the victim (PW-2) has stated the date of birth of the victim to be 25/11/2002 but in cross-examination he also says that he did not go to the Kotwar to get the birth dates of his children registered and he does not know whether his father had gone. Thus, it 17 is not clear from the evidence that on what basis and who got the prosecutrix's date of birth recorded in the school mark sheet Article-B and in the birth certificate Article-A. Neither the statement of the person who got the date of birth registered nor the statement of the person who registered it has been recorded nor the original register has been produced on the basis of which the certificates of Article-A or B were issued. Thus, in the absence of clear, reliable and sufficient evidence, the prosecution has failed to prove that the date of birth of the prosecutrix is 25/11/2002 and that at the time of the incident her age was less than 18 years. 24. According to the statement of the prosecutrix, the appellant party took her to the farm house of Sonaidongri and committed the crime. As investigating officer, the female head constable Dev Kumari (PW-7) has entered the witness box and has stated to have prepared the map (Ex. P-1), Panchnama (Ex.P-3) and according to the seizure memo Ex.P-8, newspaper, plastic water pouch, empty mixture packet, plastic comb were seized, which action was taken on 26/09/2017 i.e. the second day of the report. In the further investigation, Sub-Inspector Popendra Kurre (PW-8) has said that on 21/12/2017, i.e. about two-and-half months after the action taken by the female head constable, he had gone to the pump house at Sonaidongri and prepared Ex. P-9 for the seizure of a broken lock. 25. Vishnu Shankar Pandey (PW-4) has been examined as the owner of that pump house, from whose statement it came to fore that goods useful for agriculture were kept in that pump room of the farm house. 18 According to him (PW-4), he used to keep locked the said pump-house and retains the key of that lock with him. Later, the Gurur police station officials had asked him for the key, but he himself did not go. Thereafter, he came to know about the incident from the newspapers. This witness states in cross-examination that he was using the lock installed in the pump house for about 8-10 months. When the police came to return the keys to him, he had put the same lock which he used and the same key was used to open the lock. He has also stated that when he goes there for agricultural work, he takes food packets etc. with him and the labourers also do the same. Thus, it is clear from the statement of this witness that the newspaper, plastic water pouch, empty mixture packet, plastic comb which have been reported to be seized from the scene of crime are the items of common use and their seizure does not support the prosecution against the appellants. 26. It is also important to note that while preparing the map of the scene of crime and while seizing the said items under seizure Ex.P-8, lady head constable Dev Kumari (PW-7) has not mentioned that she found any broken lock at the spot on 26/09/2017. Then it becomes doubtful that on what basis Sub-Inspector Popendra Kurre (PW-8) has shown the seizure of the broken lock after 2 ½ months from the said place. According to the owner of that farm-house Vishnushankar Pandey (PW-4) neither any lock of his farm house was broken nor any seizure of such broken lock was made in his presence. In this way, it also becomes doubtful whether the pump house of the said farm house was used for the incident. 19 27. It is clear that the incident is said to have taken place between 04 and 05 September, 2017 and the written report (Ex.P-5) was given to the police station about 20 days later on 25/09/2017. On the basis of which the FIR was registered on 25/09/2017. This registration was done by the female Head-Constable Dev Kumari (PW-7). 28. In cross-examination, Dev Kumari (PW-7) has admitted that the FIR (Ex.P-6) is in computer format in which the reason for delay in lodging report is not mentioned. She has also clarified that the report was lodged by her father and not by the prosecutrix. She has also admitted that she did not inquire whether the appellant Kumari Durga Yadav was present in her school on the day of the alleged incident or not. She has also admitted that there is a bus stand and a girls-school near the farm house where the incident took place, which is a crowded area where buses come and go at an interval of 10-11 minutes. 29. There is no evidence in this regard that the prosecutrix (PW-1) was seen being taken away by the appellants on a motorcycle. Whereas it is said that she was taken to the farm house situated on the Balod Dhamtari road. There is no clear evidence in this regard that the appellants entered the pump house by breaking its lock. In such a situation, the statement of the prosecutrix cannot be considered reliable beyond doubt. 30. The prosecutrix (PW-1) has admitted in cross-examination that on the way from home to school, her father's Tyre Shop is there in Gondwana Complex, Ambedkar Chowk, Gurur. It is clear that even if the appellant Durga Yadav had asked her to go to a friend's birthday 20 party, the prosecutrix could have informed her father before going, which she did not do. The prosecutix has also admitted that she used to take lunch with the girls of her class and not with her sister though her sister studies in the same school. She has admitted the suggestion that if she wants, she can meet her sister during lunch. It also does not appear that she informed her sister about going to the birthday party. She has also admitted that about 15-20 girls from their village Mokha go to study in the school situated in Gurur. But she did not tell any of them about going to the birthday party with the appellant Durga Yadav. She has said that Gurur bus stand is a crowded place but she did not raise any alarm there. She has also stated that her mother did not ask as to whose friend's place she had gone to celebrate her birthday party. She has not stated anywhere that if appellant Durga Yadav had asked her to go to a friend's birthday party then what was the name of that friend. She has stated that she was scared of the incident and therefore told her mother about the incident after a week. She has admitted that after the incident her father got her transfer certificate from Kanya Shala, Gurur and sent her to study at the place of her grandfather. She has also admitted that on the date of incident she did not get permission from any teacher or principal to go out of the school. She has also admitted that co-accused Gulshan had dropped her in front of her house. 31. The father of the complainant (PW-2) has deposed that he did not report the matter earlier due to fear of public shame but later he thought that such an incident can happen to anyone and then he went to the 21 police station and gave a written report (Ex.P-5). He has also admitted that his shop is on the way to his daughter’s school and in front of it is the main road from Gurur to Mokha-Sonaidongri. He has admitted that his younger daughter did not give any information about the movement of prosecutrix (PW-1) or her going somewhere. He has also admitted that 5-6 days after the incident he got the prosecutrix’s transfer certificate from the school and got her admitted in Halba School Charama. 32. The defence of the appellants and the statements of the defence witnesses of the appellants’ side itself show that the prosecutrix was misleading the fact from the beginning as to with whom she had gone. Her father (PW-2) has also admitted that immediately after the incident, he got the transfer certificate of the prosecutrix from the school in Gurur and got her admitted in another Halba school at Charama. In this way, before reporting to the police, the prosecutrix’s father had got her admitted in another school and according to the defence witnesses also, the father (P.W.2) got his daughter (P.W.1) on the very next day but he did not bring her to the village nor he tried to keep her present before the Society / Panchayat, but instead sent her to the village of his elder brother i.e., Geetpahar, Police Station Charama, district Kanker. 33. No satisfactory explanation has been given as to why there was a delay of about 20 days in filing the report. If the prosecutrix could have been transferred from the school before informing the society / Panchayat, then why there was a delay in lodging the report. All these facts are such that they bring the prosecution's case and the 22 statements of the prosecutrix and her father completely under suspicion. 34. On the basis of the above analysis of evidence, we find that the statements of the prosecutrix (PW-1) and her father (PW-2) are not reliable as their testimonies do not conform to the norms of sterling witnesses. No satisfactory reason has been given for the report being written with a delay of 20 days. The statement of the prosecutrix is not corroborated by medical evidence. The FSL report is doubtful. This apart, the prosecution has failed to prove that the prosecutrix was a minor at the time of the incident. 35. In view of the foregoing discussion, the impugned judgment of conviction and order of sentence dated 08.02.2019 cannot be allowed to sustain and is hereby set aside. The appellants are acquitted of the aforesaid offences. 36. Appellant Kumari Durga Yadava is stated to be on bail. She is not required to surrender. Her bail bonds shall remain effective for a period of six months in view of the provisions contained in Section 437- A of CrPC. 37. Appellants Ram Yadav and Pramod Sen are stated to be in jail since 28.09.2017 and 01.10.2017 respectively. They be released from jail forthwith, if their detention is not required in connection with any other offence. 38. In the result, the appeals are allowed. 39. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the 23 Superintendent of Jail where the appellant is presently lodged and suffering his jail sentence be also supplied with a copy of this judgment, for information and necessary action. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Rao