2026:HHC:26975 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 355 of 2023 Reserved on: 22.06.2026 Date of Decision: 07.07.2026 Raman Kumar ...Appellant Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellant : Ms. Anjali Soni Verma, Advocate. For the Respondent/State : Mr Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The present appeal is directed against the judgment of conviction and order of sentence dated 25.07.2023 passed by the learned Additional Sessions Judge (Fast Track Special Court POCSO), Kangra at Dharamshala (learned Trial Court) vide which the appellant (accused before the learned Trial Court) was convicted and sentenced as under: Under Section 4 of the POCSO Act To suffer simple imprisonment for a period of seven years, pay a fine of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:26975 ₹5,000/- and in default of payment of fine, to undergo simple imprisonment for one year. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience) 2. Briefly stated, the facts giving rise to the present appeal are that the police filed a charge sheet against the accused for the commission of offences punishable under Section 376 of Indian Penal Code (IPC), Section 4 of Protection of Children from Sexual Offences Act (POCSO) Act and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act (SC & ST Act). It was asserted that the informant was aged 14 years and was studying in class 9th. She came out of her home to answer the call of nature on 14.10.2018 at about 06.30 p.m. The accused dragged her and raped her. She became unconscious and was brought to her home. The matter was reported to the police, and the police recorded an entry (Ext.P3/PW12) in the daily diary. Inspector Mahinder Kumar (PW27) went to the spot to verify the correctness of the information. The victim filed an application (Ext.P1/PW9), which was sent to the police station where an FIR (Ext.P2/PW9) 3 2026:HHC:26975 was registered. Inspector Mahinder Kumar (PW27) investigated the matter. He recorded the statements of the victim, her father and her aunt. The statements were videographed, and the video recording was transferred to the DVD (Ext.P9/PW19). Inspector Mahinder Kumar (PW27) filed an application (Ext.PW3/A) for the medical examination of the victim. Dr Meenakshi (PW3) examined the victim and found that the possibility of sexual intercourse could not be ruled out. She issued the MLC (Ext.PW3/B). She obtained the samples and handed them over to the police officials accompanying the victim. Inspector Mahinder Kumar (PW27) filed an application (Ext.P1/PW27) before the learned Additional Chief Judicial Magistrate, Nurpur, for recording the statement of the victim. Learned Magistrate recorded the victim’s statement (Ext.P4/PW9). Inspector Mahinder Kumar (PW27) visited the spot and prepared the site plan (Ext.P2/PW27) on the identification of the victim and her aunt. He took the photographs (Ext.P5/PW9 to Ext.P8/PW9). He lifted the sample soil from the spot, put it in a parcel and sealed the parcel with five seals of seal ‘K’. He obtained the seal impression (Ext.P1/PW13) on a separate piece of cloth. He seized the parcel vide memo (Ext.PW1/A). He arrested the accused. 4 2026:HHC:26975 The accused identified the spot. Inspector Mahinder Kumar (PW27) prepared the spot memo (Ext. PW1/C) and the site plan (Ext. P3/PW27). The vehicle of the accused bearing registration No. PB- 07BG-3389 was found parked on the spot. Inspector Mahinder Kumar (PW27) seized the vehicle along with the utensils and the documents vide memo (Ext.PW1/P). Roshan Lal (PW19) took the photographs (Ext.P1/PW19 to Ext.P8/PW19). He handed over the utensils and the vehicle to the father of the accused vide memo (Ext.P4/PW27). He filed an application (Ext.PW7/A) for supplying the birth certificate of the victim. Shakti Chand (PW7) issued the birth certificate of the victim (Ext.PW7/A) showing that the victim was born on 03.05.2004. He forwarded the certificate to the police vide letter (Ext.PW7/C). Kewal Krishan handed over a copy of the Family Register (Ext.P5/PW27) showing that the victim belonged to the Schedule Caste category. The case property was sent to the FSL, and a report (Ext.PY) was issued stating that Human blood was detected in the vaginal swab and pubic hair of the victim and the pants of the accused, but it was insufficient for blood grouping. Human blood and semen were detected on the underwear of the accused. Blood was detected in traces in vagina smear side of the 5 2026:HHC:26975 victim and the pubic hair of the accused, but it was insufficient for serological examination. Human blood was also detected on the T-shirt of the accused, but it was inconclusive in respect of blood group. The samples were also tested for DNA. Two profiles were obtained from the blood sample of the victim and the accused. DNA profile obtained from the T-shirt of the accused was consistent with the DNA profile obtained from the blood sample of the victim and completely matched the blood sample of the accused. The statements of witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with the commission of an offence punishable under Section 4 of the POCSO Act and Section 3(1) (w) (i) of the SC and ST Act, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined 27 witnesses to prove its case. Kewal Krishan (PW1) and Kewal Singh (PW2) did not support the prosecution's case. Dr Meenakshi (PW3) medically examined the victim. Daler Singh (PW4) loaded the articles in the vehicle. 6 2026:HHC:26975 Sushil Kumar (PW5) issued the caste certificate of the victim. Sanjay Singh (PW6) received the application for issuance of the caste certificate. Shakti Chand (PW7) issued the date of birth certificate of the victim. Victim's father (PW8), victim (PW9), and victim's aunts (PW10 and PW22) narrated the incident. HASI Mohinder Singh (PW11) proved the entry in the daily diary. ASI Ashok Kumar (PW12), ASI Raj Kumar (PW14), and ASI Rakesh Kumar (PW21) were working as MHCs. HC Vipin Kumar (PW13) witnessed the recoveries. LC Raj Kumari (PW15) recorded the supplementary statement of the victim and accompanied the victim to the hospital. HASI Shashi Pal (PW16) accompanied the accused to the hospital. HC Sanjeev Kumar (PW17) carried the case property to RFSL Dharamshala. Jagdev Singh (PW18) proved the entry in the daily diary. Roshan Lal (PW19) took the photographs and videographed the spot. Constable Vivek (PW20) brought the result of the analysis and case property from the RSFL. Dr Arun Sharma (PW23) analysed the samples for DNA profiling. Sandeep Pathania (PW24) signed the FIR. Dy. SP Sahil Arora (PW25) and Inspector Mahinder Kumar (PW27) investigated the matter. Dr Varun Sharma (PW26) medically examined the accused. 7 2026:HHC:26975 5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.), denied the prosecution's case in its entirety. He claimed that he was innocent and was falsely implicated. He did not produce any evidence in his defence. 6. Learned Trial Court held that the victim's testimony was satisfactory. It was duly corroborated by the statements of her father, mother and aunt. Dr Meenakshi (PW3) stated that the possibility of sexual intercourse could not be ruled out. This corroborated the victim’s version. The DNA profile found on the T-shirt of the accused established the prosecution's version. The victim was a minor on the date of the incident. However, it was not proved that the accused had committed the offence because the victim belonged to the scheduled caste. Hence, the learned Trial Court convicted and sentenced the accused as aforesaid. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing him. There were major contradictions in the statements of the victim recorded before the Police, the magistrate, and the 8 2026:HHC:26975 Court. The identification of the accused was not properly proved. The Medical Officer had not found any injuries on the body of the victim, which ruled out the possibility of sexual intercourse. The DNA analysis could not have been used to convict the accused. There was a discrepancy in the colour of the T-shirt analysed in the laboratory, which made the prosecution's case highly doubtful. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Ms Anjali Soni Verma, learned counsel for the appellant/accused, and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State. 9. Ms Anjali Soni Verma, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. Dr Meenakshi (PW3) had not found any injuries on the person of the victim, and the victim’s hymen was found intact, which ruled out the possibility of sexual intercourse. The identification of the accused was highly suspect. The victim was studying in school, and her age was to be proved by the school certificate as per Section 94 of the Juvenile Justice (Care and Protection of Children Act), 2015, (JJ Act). No such certificate 9 2026:HHC:26975 was proved on record, and reliance could not have been placed upon the certificate issued by the Panchayat or the copy of the Pariwar Register. There was a discrepancy in the colour of the T- shirt, and DNA is not a perfect science, which could result in the conviction of a person. Learned Trial Court ignored all these aspects. Therefore, she prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. She relied upon the judgments of this Court in Tsewang vs. State of H.P. Cr. Appeal No. 138 of 2019 decided on 19.09.2023, V vs. State of H.P. 2024:HHC:13464 and Mukesh Kumar vs. State of H.P. Cr. Appeal No. 321 of 2021 decided on 27.12.202 in support of her submissions. 10. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the mere absence of injuries on the body of the victim is not sufficient to conclude that no rape had taken place. The victim’s testimony was corroborated by the statements of her father and aunts. The victim’s DNA was found in the T-shirt of the accused, which corroborated the prosecution’s version. There is a clerical error in the report of the analysis regarding the colour of the T-shirt, 10 2026:HHC:26975 which is not sufficient to doubt the prosecution’s version. There is no infirmity in the judgment and order passed by the learned Trial Court. Therefore, he prayed that the present appeal be dismissed. 11. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The victim (PW9) stated that she had gone to the fields to answer the call of nature on 14.10.2018 at about 06.30 p.m. The accused gagged her mouth with a piece of cloth and hit her head with a heavy object, as a result of which she lost consciousness. She regained consciousness in her house. Her clothes were stained with blood, and the accused had raped her. The accused was drunk. She made a complaint (Ext.P1/PW9) to the police, and an FIR (Ext.P2/PW9) was registered. She stated in her cross-examination that she had sustained injuries to her back and head. She had disclosed the injuries to the Doctor. She admitted that the police had not seized any weapon or handkerchief during the investigation. She admitted that she had found her clothes to be proper after she had regained consciousness. She volunteered to say that they were smeared with blood. She admitted that she had told the Doctor that she was menstruating and that some unknown 11 2026:HHC:26975 person had hit her from behind. She admitted that she did not know the accused by name before the incident. She volunteered to say that the accused used to visit her village and she knew him by face. She admitted that the name of the accused was told to her by the police. She admitted that the accused was not identified in a Test Identification Parade. She admitted that the police had recorded her statement (Ext.P1/PW9), wherein it was recorded that the accused had acted indecently with her from the beginning and digitally penetrated her. She denied that the accused had not done anything to her. 13. Ms Anjali Soni Verma, learned counsel for the accused, submitted that the testimony of the victim is not satisfactory. She has materially improved upon her version. She referred to the statements of a victim recorded by the police, the Magistrate and the Court to highlight various discrepancies. This submission will not help the accused because the victim’s attention was not brought to the discrepancies in the previous statements recorded by the Police or the Magistrate. It was laid down by the Hon’ble Supreme Court in Binay Kumar Singh Versus State of Bihar, 1997 (1) SCC 283, that if a witness is to be contradicted with his previous 12 2026:HHC:26975 statement, his attention must be drawn towards it. It was observed: - “11. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in S. 155 (3) of the Evidence Act, and it must be borne in mind when reading S. 145, which consists of two limbs. It is provided in the first limb of S.145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him but the second limb provides that "if it is intended to contradict him by the writing his attention must before the writing can be provided, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination, even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of S. 145. 12. In Bhagwan Singh's case (AIR 1952 SC 214), Vivian Bose, J., pointed out in paragraph 25 that during the cross- examination of the witnesses concerned, the formalities prescribed by S. 145 are complied with. The cross- examination, in that case, indicated that every circumstance intended to be used as a contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses' attention should have been specifically drawn to that passage in 13 2026:HHC:26975 addition thereto. Their Lordships were, however, satisfied in that case that the procedure adopted was in substantial compliance with S. 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein. 13. So long as the attention of PW 32 (Sukhdev Bhagat) was not drawn to the statement attributed to him as recorded by DW-10 (Nawal Kishore Prasad), we are not persuaded to reject the evidence of PW-32 that he gave Ex. 14 statement at the venue of occurrence and that he had not given any other statement earlier thereto.” 14. A similar view was taken in Alauddin v. State of Assam, 2024 SCC OnLine SC 760, wherein it was observed: “7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161(1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161(1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, 14 2026:HHC:26975 the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the cross-examination. 8. As stated in the proviso to sub-Section (1) of section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus: “145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be cross- examined by asking whether his prior statement exists. The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement recorded by the police, the witness's attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses must be proved subsequently. Only if the contradictory part of his previous statement is proved can the contradictions be said to be proved. The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States. In some States, practice is to 15 2026:HHC:26975 mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross-examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act, in confronting the witness by showing him the relevant part of his prior statement, is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness. 9. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in accordance with clause (3) of Section 155 of the Evidence Act, which reads thus: “155. Impeaching the credibility of the witness. — The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him— (1) ….…………………………………… (2) ……………………………………… 16 2026:HHC:26975 (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.” It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trivial omission or contradiction brought to the record is not sufficient to disbelieve the witness's version. Only when there is a material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission, depending upon the facts of each case? Whether an omission is a contradiction also depends on the facts of each case. 10. We are tempted to quote what is held in a landmark decision of this Court in the case of Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875. Paragraph 13 of the said decision reads thus: “13. The learned counsel's first argument is based upon the words “in the manner provided by Section145of the Indian Evidence Act, 1872” found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradicting him. In support of this contention, reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) 1 SCC 514:1952 SCR 812]. Bose, J. describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act, thus at p. 819: Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts, 17 2026:HHC:26975 which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case, all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made.” It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section 145 of the Indian Evidence Act, for the said decision of this Court, and similar decisions were not considered the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to aprevious statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction: in other words, both parts deal with cross-examination; the first part with cross-examination other than by way of contradiction, and the second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement were allowed to be used for the purpose of cross- examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The 18 2026:HHC:26975 difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness box that B stabbed C; before the police, he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police, which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit it, the practice generally followed is to admit it, subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked, “Did you say before the police officer that you saw a gas light?” and he answers, “Yes”, then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is that it enables the accused to elicit by a process of cross- examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross- examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants, there is no self-contradiction of the primary statement made in the witness box, for the witness has not yet made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually said before him. In such a case, the question could not be put at all: only questions to contradict can be put, and the question here posed does not contradict; it leads to an answer which is contradicted by the police 19 2026:HHC:26975 statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure.” (emphasis added) This decision is a locus classicus, which will continue to guide our Trial Courts. In the facts of the case, the learned Trial Judge has not marked those parts of the witnesses' prior statements based on which they were sought to be contradicted in the cross-examination.” 15. It was held in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 58, that the Courts cannot suo motu take cognisance of the contradiction and the same has to be brought on record as per the law. It was observed: 19. Under Section 145 of the Evidence Act, when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of the witness is drawn to that part, and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved, and there is no need for further proof of contradiction, and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement, and it must be mentioned in the deposition. By this process, the contradiction is merely brought on record, but it is yet to 20 2026:HHC:26975 be proved. Thereafter, when the investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction; it will then be proved in the deposition of the investigating officer, who again, by referring to the police statement, will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction. 20. In the case at hand, PW 1 was not confronted with his statement recorded by the police under Section 161 CrPC to prove the contradiction, nor was his statement marked for the purpose of contradiction, which was read out to the investigating officer. When neither PW 1 nor the investigating officer were confronted with the statement and questioned about it, PW 1's statement recorded under Section 161 CrPC cannot be looked into for any purpose, much less to discredit the testimony of PW 1 and the prosecution version. 16. This position was reiterated in Anees v. State (NCT of Delhi), 2024 SCC OnLine SC 757, wherein it was observed: “64. The court cannot suo motu make use of statements to the police that have not been proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words ‘if duly proved’ are used in Section 162Cr. P.C. clearly shows that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can it be looked into, but they must be duly proved for contradiction by eliciting admission from the witness during cross-examination and also during the 21 2026:HHC:26975 cross-examination of the Investigating Officer. The statement before the Investigating Officer can be used for contradiction, but only after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction. 65. Section 145 of the Evidence Act reads as follows: “145. Cross-examination as to previous statements in writing.— A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” 66. Under Section 145 of the Evidence Act, when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of the witness is drawn to that part, and this must be reflected in his cross- examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved, and there is no need for further proof of contradiction, and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement, and it must be mentioned in the deposition. By this process, the contradiction is merely brought on record, but it is yet to be proved. Thereafter, when the Investigating Officer is examined in the court, his attention should be drawn to the passage marked for contradiction; it will then be proved in the deposition of the Investigating Officer, who, again, by referring to the police statement, will depose about the witness having made that 22 2026:HHC:26975 statement. The process again involves referring to the police statement and culling out the part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.” [See: V.K. Mishra v. State of Uttarakhand: (2015) 9 SCC 588] 17. Therefore, it is impermissible to impeach the victim’s credit during the arguments by referring to her previous statements. 18. Dr Meenakshi (PW3) examined the victim. She found no external fresh injury marks over the victim's body. She also found that the victim’s hymen was intact. Dr Meenakshi stated in her cross-examination that she did not find any marks of injury or violence on the body of the victim. As per her opinion, the sexual intercourse may or may not have taken place. Since the hymen was found to be intact, it could not be said definitely that any kind of sexual intercourse had taken place. The minimal vaginal bleeding could have occurred because of menstrual blood, and the victim had herself disclosed that she had undergone menstrual periods on 09.10.2018. 23 2026:HHC:26975 19. It was submitted that the absence of injuries on the body of the victim made the prosecution's case doubtful. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Deepak Kumar Sahu v. State of Chhattisgarh, 2025 SCC OnLine SC 1610, that the absence of injuries on the victim’s body does not make her testimony doubtful. It was observed: “5.5. In cases of offences committed under Section 376, IPC, when the story of the victim girl as told in the evidence is found credible, the apparent insufficiency of medical evidence pitted against acceptable testimony of the victim, the latter would prevail. In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384] it was observed: In the absence of injury on the private part of the prosecutrix, it cannot be concluded that the incident had not taken place or that the sexual intercourse was committed with the consent of the prosecutrix. The prosecutrix, being a small child of about nine years of age, there could be no question of her giving consent to sexual intercourse. The absence of injuries on the private part of the prosecutrix can be of no consequence in the facts and circumstances of the present case. (Para 16) 5.5.1. In State of Himachal Pradesh v. Manga Singh, [(2019) 16 SCC 759], which was also a case in relation to the offence committed under Section 376, IPC, where the prosecutrix was a minor girl aged 9 years, she was staying in her aunt's house pursuing her studies. When the offence of rape was committed against her, she narrated the story to her teacher. The High Court gave the benefit of doubt to the accused on the ground, inter alia, that the medical evidence of the doctor was not conclusive to hold that the prosecutrix was subjected to sexual intercourse. 24 2026:HHC:26975 5.5.2. This Court observed that if the evidence of the victim does not suffer from any basic infirmities and the factor of probability does not render it unworthy evidence, the conviction could be based solely on the evidence of the prosecutrix. It was further observed that, as a general rule, there is no reason to insist on the corroboration except in certain cases. 5.5.3. The medical evidence may not be available in which circumstance, the solitary testimony of the prosecutrix could be sufficient to base the conviction. “The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix, and no corroboration be required unless there are compelling reasons that necessitate the courts to insist on corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.” (Para 11) 5.5.4. It may be true that in the present case, the evidence of the medical officer (PW-17) spoke about the absence of external injury marks on the genitals of the victim. However, the proposition that the corroboration from the medical evidence is not sine qua non when the cogent evidence of the victim is available, was reiterated in a recent judgment of this Court in Lok Mal alias Loku v. State of Uttar Pradesh, [(2025) 4 SCC 470], observed: “Merely because in the medical evidence, there are no major injury marks, this merely cannot be a reason to discard the otherwise reliable evidence of the prosecutrix. It is not necessary that in each and every case where rape is alleged, there has to be an injury to the private parts of the victim, and it depends on the facts and circumstances of a particular case. We reiterate that the absence of 25 2026:HHC:26975 injuries on the private parts of the victim is not always fatal to the case of the prosecution. (Para 4) 5.5.5. Akin to the facts of the present case, it was stated in Lok Mal(supra), according to the version of the prosecutrix, that the accused overpowered her and pushed her to bed in spite of her resistance and gagged her mouth using a piece of cloth. Thus, considering this very aspect, it is possible that there were no major injury marks. The appellant made an attempt to raise the defence of false implication; however, he was unable to support his defence with any cogent evidence. 5.5.6. The credible and reliable evidence of the prosecutrix could not be jettisoned for want of corroboration, including the corroboration by a medical report or evidence. The Court observed in Manga Singh (supra) that “in the absence of injury on the private part of the prosecutrix, it cannot be concluded that the incident had not taken place or the sexual intercourse was committed with the consent of the prosecutrix”. It was stated that it is well settled that in the cases of rape, it is not always necessary that external injury is to be found on the body of the victim. 5.5.7. In Wahid Khan v. State of Madhya Pradesh, [(2010) 2 SCC 9], this Court repelled the contention of the appellant that since the hymen of the prosecutrix was found to be intact, it cannot be said that an offence of rape has been committed. The Court refused to accept such contention in light of the definition of the offence of rape in Section 375 of the Penal Code, 1860. It was further observed that it is the consistent view of this Court that even the slightest penetration is sufficient to make out an offence of rape. 5.6. It is an oft-repeated dictum of law that in cases of rape, the testimony of the prosecutrix alone may be sufficient and sole evidence of the victim, when cogent and consistent, could be properly used to arrive at a finding of guilt. In the State of Himachal Pradesh v. Manga Singh, (2019) 16 SCC 759, this Court, in terms stated that conviction can be rested on the testimony of the prosecutrix alone. 26 2026:HHC:26975 The conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix, and no corroboration be required unless there are compelling reasons that necessitate the courts to insist on corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.” (Para 10) 5.6.1. It was further asserted that corroboration is not an essential requirement for conviction in the cases of rape. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factor” does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, the solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court. (Para 11) 5.6.2. In Gurmit Singh (supra), it was observed to reiterate that in all cases, the corroboration of the statements made by the victim in her evidence could not be insisted upon as a rule of thumb: In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of a fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the 27 2026:HHC:26975 tendency to conceal outrage of sexual aggression are factors that the courts should not overlook. (Para 8) 5.6.3. It was asserted that only compelling reasons would justify rejection of the testimony of a rape victim, and not otherwise: “….the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury…” (Para 8) 5.6.4. From a recent decision in Raju alias Umakant v. State of Madhya Pradesh (2025 SCC OnLine SC 997), the following observations could be noticed: “…….a woman or a girl subjected to sexual assault is not an accomplice but a victim of another person's lust, and it will be improper and undesirable to test her evidence with suspicion. All that the law mandates is that the Court should be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of charge levelled by her and if after keeping that aspect in mind if the Court is thereafter satisfied that the evidence is trustworthy, there is nothing that can stop the Court from acting on the sole testimony of the prosecutrix. [See State of Rajasthan v. N.K. the Accused, (2000) 5 SCC 30, Rameshwar v. State of Rajasthan, 1951 SCC 1213, State of Maharashtra v. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384]” (Para 18) 5.6.5. As early as in State of Maharashtra v. Chandraprakash Kewalchand Jain, [(1990) 1 SCC 550], this court observed that the prosecutrix of a sex offence cannot be put on a par with the accomplice; it was further observed that she is a victim of crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. It was further observed that evidence of a rape 28 2026:HHC:26975 victim must receive the same weight as is attached to an injured person in cases of physical violence. It was stated that there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 of the Evidence Act, which may require it to look for corroboration.” 20. Delhi High Court held in Beeru v. State (NCT of Delhi), 2013 SCC OnLine Del 4995 that the hymen being intact does not rule out the commission of rape. It was observed: 23. The other contention raised by the learned counsel for the appellant was that the hymen of the prosecutrix was found missing but not torn, and the prosecutrix was not examined by the gynaecologist. Here, it would be pertinent to refer to the observations of the report given by the Justice Verma Committee, and the relevant extract of the same is reproduced as under:- “However, it is largely irrelevant because the hymen can be torn due to several reasons. An intact hymen does not rule out sexual assault, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual assault. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, oedema, etc.) are to be documented.” 24. The Division Bench of this court in the matter of Pappu v. State of Delhi, 2010 (1) Cri.LJ 580 Delhi dealing with a similar medical condition of the prosecutrix of six years of age, whose hymen was also found torn and her vagina admitted two fingers easily, and no injury was found on the private part, after placing reliance on the medical jurisprudence (5th Edition by Dr R.M. Jhala and B.B. Raju) held as under:- 29 2026:HHC:26975 “The reason is obvious. Medical jurisprudence evidences that in adolescent girls, the hymen is situated relatively more posteriorly, and for this reason, there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the hymen of an adolescent girl is torn due to rape, the penetration has to be deep. The medical jurisprudence guides that the labia majora are the first to be encountered by the male organ, and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counteracted by the victim. The narrowness of the vaginal canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia, and such blows lead to contusion because of looseness and vascularity. The feature of such contusion is revealed against the pink background of the mucous membrane dark red contusion being evident to the naked eye” 25. As can be seen from the aforesaid authoritative view of the experts in the medical field, as referred to by the Hon'ble Division Bench and by the Justice Verma Committee, the condition of the hymen being torn of the prosecutrix may not necessarily mean a previous sexual intercourse, and conversely, the hymen being not torn also does not necessarily mean that there was no sexual intercourse. In some of the females, the hymen can also be missing, and in such cases, mere absence of the hymen will not necessarily prove the previous sexual intercourse and likewise will also not rule out the previous sexual assault. Much would depend on the quality, reliability and credibility of the testimony of the prosecutrix, and if the same is found to be of unimpeachable character, the conviction of the accused can be based on the same even without looking for corroboration from the medical evidence. The same principle equally applies to the evidence of forensic science, as the same is also not a substantive piece of evidence and may not support even otherwise clear and cogent evidence of the prosecutrix. 30 2026:HHC:26975 It is also a settled legal position that for proving the offence of rape, penetrative sexual assault may not necessarily result in ejaculation and therefore, in such cases, there can hardly arise any question of stains of semen being there on the clothes of the victim and the perpetrator of the crime. Thus, the contention raised by learned counsel for the appellant on this aspect also lacks merit and the same is rejected. 21. Therefore, the victim’s testimony cannot be discarded because she had not sustained any injury during the incident, nor was her hymen found intact by the medical officer. 22. A heavy reliance was placed upon the judgment of this Court in Tsewang (supra), wherein this Court had held that the absence of injuries in a case of sodomy would make the prosecution's case suspect. The cited judgment deals with sodomy and is not relevant in a case of rape. Therefore, not much advantage can be derived from the cited judgment. 23. The victim's father (PW8) stated that he returned to his house and enquired about the victim. He was told that the victim had gone to answer the call of nature. The victim did not return to her home for some time. He informed his sister. His sister, his niece, and his son went to search for the victim. The victim was traced in a sugar cane field. She was lying unconscious and was brought home. She disclosed that she was raped by a boy. He stated 31 2026:HHC:26975 in his cross-examination that he did not know the name of the accused, but the police had disclosed the name of the accused. He admitted that the police had not conducted any Test Identification Parade. He admitted that the police had arrested the accused based on suspicion. 24. The victim's aunt (PW10) stated that her brother telephonically informed her on 14.10.2018 at about 08.15 p.m. that the victim was missing from the home. She went to search for the victim along with her niece and the victim’s brother. A vehicle was parked on the roadside. One boy was standing near the vehicle, who revealed on enquiry that the accused had followed the victim. They called for the victim. The accused came and revealed that the victim was lying unconscious in the 4th Sugarcane field. They went to the field where the victim was unconscious. Her Salwar was removed, and her clothes were smeared with blood. They brought the victim to the house. The accused requested them not to call the police. They called Pradhan. Pradhan visited the house, and the incident was narrated to him. She stated in her cross-examination that she did not know the name of the accused before the date of the incident, and the name of the accused was disclosed by the 32 2026:HHC:26975 police. She admitted that the police had not conducted any Test Identification Parade and that the police had not recorded the statement of the boy who was standing near the vehicle. She denied that the accused was arrested based on suspicion. 25. The victim's other aunt (PW22) stated that the victim had left the home to ease herself. The victim did not return to her home. She (aunt) and the victim's father searched for the victim. The victim's other aunt used to reside with them, but had gone to meet her elder sister. She was informed, and she returned at about 09:30-10:00 p.m. The victim's aunt enquired whether any hawker had visited that day. She informed the victim's aunt that one person who was selling utensils had visited the village. The victim went to the field of sugar cane and started calling the victim's name. The accused came out of the sugar cane field. He was caught on the spot, and an enquiry was made about the victim. The accused said that the victim would return. The victim was found in the sugar cane field. She stated in her cross-examination that she did not know the accused personally, but she used to purchase utensils from him. She admitted that she came to know about the name of the accused from the police, and the police had not 33 2026:HHC:26975 obtained her signature on any memo regarding the identification of the accused. She admitted that no one had seen the accused and the victim going together, and the accused was apprehended based on suspicion. 26. The statements of these witnesses corroborate the victim's version that the accused had raped her. The accused was found coming out of the sugar cane field where the victim was found unconscious with her salwar removed. The accused has not provided any explanation for his conduct, and the circumstances can only lead to an inference of the guilt of the accused. 27. The accused was arrested. Dr Varun Sharma (PW26) examined him. He found smegma absent, a bruise over the deltoid region, and a red bruise over the right abdomen. He preserved the clothes of the accused and his sample. He stated that there was nothing to suggest that the accused was incapable of performing sexual intercourse. He was not cross-examined at all, which means that his testimony was accepted as correct. The statement of Doctor Varun Sharma (PW26) proves that the accused had sustained injuries and clothes, and the samples of the accused were preserved. 34 2026:HHC:26975 28. The samples were sent to the FSL, and the report of DNA analysis (Ext.P1/PW23) was issued, in which it was mentioned that the DNA profile obtained from the T-shirt of the accused matched completely with the DNA profile obtained from the victim. Further, the report of analysis (Ext.P1) mentions that blood was found in the pants and pubic hair of the accused, but it was insufficient for serological examination. The accused has not provided any explanation for the presence of the DNA profile of the victim on his clothes. It was laid down by the Hon’ble Supreme Court in Manoj v. State of M.P., (2023) 2 SCC 353: 2022 SCC OnLine SC 677 that the report of DNA analysis can be used to corroborate the version of the witness. It was observed: 154. In Dharam Deo Yadav v. State of U.P., (2014) 5 SCC 509: (2014) 2 SCC (Cri) 626, this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows: (SCC pp. 528-29, para 36) “36. DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made up of a double-stranded structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine, pyrimidines. … DNA usually can be obtained from any biological material, such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be moot, but the fact remains that such tests have 35 2026:HHC:26975 come to stay and are being used extensively in the investigation of crimes, and the court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century ago, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory.” 155. The US Supreme Court in District Attorney's Office for the Third Judicial District v. Osborne, 2009 SCC OnLine US SC 73: 557 US 52 (2009) dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that: (SCC OnLine US SC) “Modern DNA testing can provide powerful new evidence, unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While, of course, many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. … DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.” 156. Several decisions of this Court —Pantangi Balarama Venkata Ganesh v. State of A.P., (2009) 14 SCC 607 : (2010) 2 SCC (Cri) 190], Santosh Kumar Singh v. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469, State of T.N. v. John David, (2011) 5 SCC 509 : (2011) 2 SCC (Cri) 647, Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61, Surendra Koli v. State of U.P., (2011) 4 SCC 80 : (2011) 2 SCC 36 2026:HHC:26975 (Cri) 92, Sandeep v. State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18, Rajkumar v. State of M.P., (2014) 5 SCC 353 : (2014) 2 SCC (Cri) 570 and Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673 have dealt with the increasing importance of DNA evidence. This Court has also emphasised the need to ensure quality control, about the samples, as well as the technique for testing in Anil v. State of Maharashtra, (2014) 4 SCC 69: (2014) 2 SCC (Cri) 266: (Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266, SCC p. 81, para 18) “18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material, such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profiles have also shown a tremendous impact on forensic investigation. Generally, when the DNA profile of a sample found at the scene of a crime matches the DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. A DNA profile is valid and reliable, but the variance in a particular result depends on the quality control and quality procedure in the laboratory.” 157. This Court, in one of its recent decisions, Pattu Rajan v. State of T.N., (2019) 4 SCC 771: (2019) 2 SCC (Cri) 354, considered the value and weight to be attached to a DNA report: (SCC p. 791, para 52) “52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence 37 2026:HHC:26975 would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.” 158. This Court, therefore, has relied on DNA reports in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that, being an opinion, the probative value of such evidence has to vary from case to case.” 29. A similar view was taken in Mukesh Kumar (supra). 30. It was submitted that the integrity of the case property has not been established, and the reliance cannot be placed upon the report of the analysis. This submission cannot be accepted. Dr Varun Sharma (PW26) obtained the samples. HASI Shashi Pal (PW16) accompanied the accused and stated that the Medical Officer handed over MLC and 5 sealed parcels containing the sample to him. He deposited the MLC and the sealed parcel with the MHC, and the case property remained intact till it remained with him. ASI Ashok Kumar (PW12) stated that he was discharging the duties of the MHC. HASI Shashi Pal (PW16) deposited one parcel sealed with five seals of seal ‘P’. He deposited the case property with him. He made the entry in the register of Malkhana and kept the case property in the Malkhana. ASI Raj Kumar (PW14) 38 2026:HHC:26975 was the regular MHC. He handed over the case property to HHC Jagdev Singh (PW18) with a direction to carry the case property to FSL. HHC Jagdev Singh (PW18) stated that he had carried the case property to the FSL Junga. All these witnesses were not cross- examined, which means that their testimonies were not disputed. The seals were found intact in the laboratory as per the report of the analysis (Ext.PY and Ext.PX-1/PW23), which means that there was no tampering with the case property. It was held in Baljit Sharma vs. State of H.P 2007 HLJ 707, where the report of analysis shows that the seals were intact, and the prosecution’s case that the case property remained intact is to be accepted as correct. It was observed: “A perusal of the report of the expert Ex.PW8/A shows that the samples were received by the expert in a safe manner, and the sample seal was separately sent and tallied with the specimen impression of a seal taken separately. Thus, there was no tampering with the seal, and the seal impressions were separately taken and sent to the expert also.” 31. Similar is the judgment in Hardeep Singh vs State of Punjab 2008(8) SCC 557, wherein it was held: “It has also come to evidence that to date, the parcels of the sample were received by the Chemical Examiner, and the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the 39 2026:HHC:26975 previously mentioned seal in the sample at any stage, and the sample received by the analyst for chemical examination contained the same opium, which was recovered from the possession of the appellant. In that view of the matter, a delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant.” 32. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC 402, the High Court had concluded that there could have been tampering with the case property since there was a delay of seven days in sending the report to FSL. It was laid down by the Hon’ble Supreme Court that case property was produced in the Court, and there was no evidence of tampering. Seals were found to be intact, which would rule out the possibility of tampering. It was observed: “The prosecution has been able to establish and prove that the aforesaid bags, which were 35 in number, contained poppy husk, and accordingly, the same were seized after taking samples therefrom which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put in the samples were in any manner tampered with before it was examined by the Chemical Examiner. There was merely a delay of about seven days in sending the samples to the Forensic Examiner, and it is not proved as to how the aforesaid delay of seven days has affected the said examination, when it could not be proved that the seal of the sample was in any manner tampered with. The seal having been found intact at the time of the examination by the Chemical Examiner and the said fact having been recorded in his report, a mere observation by the High Court that the case property might have been tampered with, in our opinion, is based on surmises and conjectures and cannot 40 2026:HHC:26975 take the place of proof. 17. We may at this stage refer to a decision of this Court in Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in which there was a delay of about 40 days in sending the sample to the laboratory after the same was seized. In the said decision, it was held that in view of cogent and reliable evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the Chemical Examiner, the delay itself was held to be not fatal to the prosecution’s case. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case in this regard. 18. The case property was produced in the Court, and there is no evidence to show that the same was ever tampered with.” 33. Similar is the judgment of the Hon'ble Supreme Court in Surinder Kumar vs State of Punjab (2020) 2 SCC 563, wherein it was held: - “10. According to learned senior counsel for the appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3), handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production, the link evidence was incomplete. In this regard, it is to be noticed that Yogi Raj, SHO, handed over the case property to Joginder Singh, ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW- 3), with the seals intact. It is also to be noticed that Joginder Singh, ASI, was not in possession of the seals of either the investigating officer or Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.P-13. The concerned Judicial Magistrate of First Class, after verifying the seals on the case property, passed the order Ex.P-14 to the effect that since there was no judicial malkhana at Abohar, the case property was ordered to be 41 2026:HHC:26975 kept in safe custody, in Police Station Khuian Sarwar till further orders. Since Joginder Singh, ASI, was not in possession of the seals of either the SHO or the Investigating Officer, the question of tampering with the case property by him did not arise at all. 11. Further, he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh did not, in any way, affect the case of the prosecution. Further, it is evident from the report of the Chemical Examiner, Ex. P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view of the matter, the chain of evidence was complete.” (Emphasis supplied) 34. Therefore, the prosecution's version that the case property remained intact has to be accepted as correct, and the learned Trial Court had rightly relied upon the report of the analysis. The report specifically mentions that the victim’s DNA was found on the T-shirt of the accused and corroborates the victim’s testimony that the accused had raped her. 35. The report of analysis (Ex PY) mentions the T-shirt of the accused as white, whereas the report (Ex. P1/P23) mentions one white and blue short-sleeved T-shirt torn from the left shoulder. It was submitted that the discrepancy in the colour of the T-shirt makes it difficult to connect the T-shirt to the accused. This submission cannot be accepted. The medical officer mentioned in 42 2026:HHC:26975 the MLC (Ex. P2/PW20) that the white T-shirt was torn from the left shoulder. Similarly, the report (Ex. Py) also mentions that white short-sleeved seams of the left shoulder region were seen torn off with the breaking and pulling of threads. The report (Ex. P1/PW23) mentions seams of the left shoulder region were seen torn off. Thus, the identity of the T-shirt is duly established, and mere discrepancy in the colour is not sufficient to hold that the T- shirt did not belong to the accused. 36. The prosecution relied upon the statement of Shakti Chand (PW7) to prove the victim’s date of birth. He issued the victim’s date of birth certificate (Ext.PW7/B), stating that the victim was born on 03.05.2004. This evidence will not help the prosecution. It is an admitted position that the victim was studying in the 9th grade; hence, her date of birth would be available in the school. It was laid down by the Hon’ble Supreme Court in Jarnail Singh versus State of Haryana (2013) 7 SCC 263 that the provisions of the Juvenile Justice Act (JJ Act) should be followed to determine the age of the victim under the POCSO Act. It was observed: “23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with the law, we are of the view that the aforesaid statutory provision should be 43 2026:HHC:26975 the basis for determining the age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of the minority is concerned between a child in conflict with the law and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has an overriding effect over an option expressed in a subsequent clause. The highest-rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), the matriculation (or equivalent) certificate of the child concerned is the highest-rated option. In case the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such an entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation, a municipal authority, or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid that Rule 12(3) postulates the determination of the age of the child concerned on the basis of medical opinion. 24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6, could not be determined on the basis of the matriculation (or equivalent) certificate, as she had herself deposed that she had studied up 44 2026:HHC:26975 to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution, in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6, on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix, VW, PW 6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6, had studied up to Class 3. Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records, indicates that the prosecutrix, VW, PW 6, was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are, therefore, of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6. It would also be relevant to mention that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material, including the ossification test, for determining the age of the prosecutrix VW, PW 6. The deposition of Satpal, PW 4, has not been contested. Therefore, the date of birth of the prosecutrix VW, PW 6 (indicated in Ext. PG as 15-7-1977) assumes finality. Accordingly, it is clear that the prosecutrix VW, PW 6, was less than 15 years old on the date of occurrence, i.e. on 25-3-1993. In the said view of the matter, there is no room for any doubt that the prosecutrix, VW, PW 6, was a minor on the date of the occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court that even if the prosecutrix VW, PW 6, had accompanied the appellant-accused Jarnail Singh of her own free will and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor.” (Emphasis supplied) 37. It was held in Sanjeev Kumar Gupta versus State of U.P.& Ors (2019) 12 SCC 370 that a matriculation certificate, and a date of 45 2026:HHC:26975 Birth certificate from the school first attended, if available, and in their absence the birth certificate given by the Corporation Municipal Authority or Panchayat would be considered. These are in hierarchical order. Thus, where a matriculation certificate or the birth certificate from the school is available, the birth certificate given by the Corporation cannot be relied upon. It was observed: “Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the Examination Board concerned in the same category [namely (i) above]. In the absence thereof, category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. Under Rule 12(3)(a)(i), the matriculation or equivalent certificate was given precedence, and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended could be obtained. In Section 94(2)(i), both the date of birth certificate from the school, as well as the matriculation or equivalent certificate, are placed in the same category. 38. It was held in Vinod Katara versus State of U.P., 2022 SCC OnLine SC 1204 that clause (a) of Rule 12(3) of 2007 Rules contains a hierarchical order. It was observed: 48. Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident from the use of the language 46 2026:HHC:26975 “in the absence whereof”. This indicates that where a matriculation or equivalent certificate is available, the documents adverted to in (ii) and (iii) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained. 49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751, this Court, while examining the scope of Rule 12 of the 2007 Rules, had reiterated that medical opinion from the Medical Board should be sought only when the matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended, or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available. This Court had held that the entry related to the date of birth entered in the mark sheet is valid evidence for determining the age of the accused person, and also the school leaving certificate for determining the age of the appellant. 39. A similar view was taken in P. Yuvaprakash v. State, 2023 SCC OnLine SC 846, wherein it was observed: 11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act, which reads as follows: “34. Procedure in case of commission of offence by a child and determination of age by the Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) 47 2026:HHC:26975 (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person, and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.” 12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act 2015 becomes relevant and applicable. That provision is extracted below: “94. Presumption and determination of age. - (1) Where it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence), that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation, a municipal authority, or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any 48 2026:HHC:26975 other latest medical age determination test conducted on the orders of the Committee or the Board: Provided that such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 13. It is evident from the conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or his being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order that the Juvenile Justice Act requires consideration are that the concerned court has to determine the age by considering the following documents: “(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation, a municipal authority, or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an 49 2026:HHC:26975 ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate, matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate, showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court-summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar), had stated on oath that the records for the year 1997 with respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i), as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of the commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh (2021) 12 SCR 502, this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act and held as follows: “20. Rule 12 of the JJ Rules, 2007, deals with the procedure to be followed in the determination of age. The juvenility of a person in conflict with the law had to be decided prima facie on the basis of physical appearance or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority 50 2026:HHC:26975 or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, the benefit could be given to the child or juvenile by considering the age on the lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94(2) of the JJ Act, this court held in Sanjeev Kumar Gupta v. The State of Uttar Pradesh (2019) 9 SCR 735 that: “Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof, category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i), the matriculation or equivalent certificate was given precedence, and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended could be obtained. In Section 94(2)(i), both the date of birth certificate from the school, as well as the matriculation or equivalent certificate, are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain v. State of West Bengal (2012) 9 SCR 224, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference. 51 2026:HHC:26975 40. A similar view was taken in Rajni v. State of U.P., 2025 SCC OnLine SC 1183, wherein it was observed: - 21. Let us first deal with the issue of juvenility. The question for consideration is whether the learned Additional District and Sessions Judge and the High Court were justified in holding respondent No. 2 to be a juvenile and whether any interference is called for in such a decision? 22. Section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2000, empowered the state government to make rules by notification in the official gazette to carry out the purposes of the Juvenile Justice (Care and Protection of Children) Act, 2000 (‘the JJ Act, 2000’). As per the proviso to sub-section (1) of Section 68, the central government was also empowered to frame model rules which would apply to the states also till such time rules were made in that behalf by the concerned state government; and while making any such rules so far as practicable to conform to the model rules framed by the central government. 23. With a view to provide for better implementation and administration of the provisions of the JJ Act, 2000 in its true spirit and substance, the central government in exercise of the powers conferred by the proviso to sub-section (1) of Section 68 of the JJ Act, 2000 made the Juvenile Justice (Care and Protection of Children) Rules, 2007 (briefly, ‘the JJ Rules, 2007’) laying down the fundamental principles to be applied in the administration of juvenile justice. Rule 12 dealt with the procedure to be followed in the determination of age. As per sub-rule (1), in every case concerning a child or juvenile in conflict with law, the court or JJB or the child welfare committee was required to determine the age of such juvenile or child or a juvenile in conflict with law within a period of 30 days from the date of making of the application for that purpose. As per sub-rule (2), the court or the JJB or the child welfare committee was required to decide 52 2026:HHC:26975 the juvenility or otherwise of the juvenile or the child or the juvenile in conflict with law prima facie on the basis of physical appearance or documents if available and send him to the observation home or to jail, as the case may be. 23.1. Sub-rule (3) of Rule 12 is relevant. Therefore, the same is extracted hereunder: (3) In every case concerning a child or juvenile in conflict with the law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificates, if available; and in the absence thereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence thereof; (iii) the birth certificate given by a corporation or a municipal authority, or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case an exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on the lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall 53 2026:HHC:26975 be the conclusive proof of the age as regards such child or the juvenile in conflict with law. 23.2. Thus, sub-rule (3) of Rule 12 provided that the age determination enquiry should be conducted firstly on the basis of matriculation or equivalent certificate. If such a certificate was not available, then the date of birth certificate from the school first attended (other than a play school). In the absence of such a certificate, the birth certificate given by a corporation, a municipal authority or a panchayat should be the basis. Clause (b) of sub-rule (3) made it clear that only in the absence of such certificates as enumerated above, medical opinion would be sought from a duly constituted medical board, which would declare the age of a juvenile or a child. In case an exact assessment of age could not be done, the court or JJB or the child welfare committee, for the reasons to be recorded, if considered necessary, had the discretion to give benefit to the child or the juvenile by considering his/her age on the lower side within the margin of one year. While passing orders in such a case, evidence as may be available or the medical opinion as provided should be taken into consideration before recording a finding in respect of age. 24. To consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care etc. by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation etc., the Juvenile Justice (Care and Protection of Children) Act, 2015 (already referred to as the JJ Act, 2015) came to be enacted. Section 111 is the repeal and savings clause. As per sub- section (1), the JJ Act, 2000, was repealed. 25. Section 94 deals with the presumption and determination of age. Section 94 reads thus: 54 2026:HHC:26975 94. Presumption and determination of age.—(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age. (2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining — (i) the date of birth certificate from the school, or the matriculation or equivalent from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority, or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided that such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 55 2026:HHC:26975 25.1. Thus, the process of age determination is provided in sub-section (2) of Section 94, which is identical to the procedure prescribed under sub-rule (3) of Rule 12 of the JJ Rules, 2007. Sub-section (2) of Section 94 says that to undertake the process of age determination, the child welfare committee or the JJB shall seek evidence in the following manner: (i) the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned Board, if available; (ii) in the absence thereof, the birth certificate given by a corporation, a municipal authority or a panchayat; (iii) in the absence of (i) and (ii), the age shall be determined by an ossification test or by any other latest medical age determination test conducted on the orders of the child welfare committee or the JJB. 26. Having noticed the relevant legal framework, let us examine as to how the case of respondent No. 2 vis-à-vis juvenility was dealt with by the JJB and thereafter by the learned Additional District and Sessions Judge. As already noted above, JJB had held respondent No. 2 to be not a juvenile, which decision was reversed by the learned Additional District and Sessions Judge and affirmed by the High Court. 27. At this stage, we need to mention that the date of the incident is 17.02.2021. On behalf of respondent No. 2, a certificate from the DPS Higher Secondary School, Parvesh Vihar, Meerut, was filed. The date of admission was mentioned as 04.04.2016. The date of birth of respondent No. 2 was mentioned as 08.09.2003. Respondent No. 2 had passed the high school examination in the year 2018 from the said DPS Higher Secondary School, Parvesh Vihar, Meerut. Thereafter, he studied at CRK Inter College, Meerut. Therefore, on the date of the incident, respondent No. 2 was below 18 years of age. In the register of DPS Higher 56 2026:HHC:26975 Secondary School and the marksheet of the high school examination, the date of birth of respondent No. 2 was mentioned as 08.09.2003. JJB, in an earlier proceeding relating to respondent No. 2, i.e. Miscellaneous Case No. 9/2000 in respect of Crime Case No. 11/2000 under Section 307 IPC, Police Station Medical College, Meerut, had accepted the date of birth of respondent No. 2 as 08.09.2003. It is seen that in the present proceeding, JJB examined the mother of respondent No. 2, who had applied to declare her son, respondent No. 2, as a juvenile. JJB observed that she did not remember in which school respondent No. 2 had studied from Class 1 to Class 7 before taking admission in DPS Higher Secondary School in Class 8. In her statement, Principal of DPS Higher Secondary School, Smt. Manju Mala Sharma stated that she had been working in the same school since the year 1996 and asserted that respondent No. 2 had obtained his education from her school from Class 4 to High School, but the original records of Class 4 to Class 8 were not available as those were destroyed due to fire. 27.1. JJB also rejected the birth certificate of Meerut Municipal Corporation, which showed the date of birth of respondent No. 2 as 08.09.2003 on the ground that it was issued on 08.06.2020. 27.2. As regards the earlier decision of JJB, it was observed that the present informant was not a party therein. Therefore, she had no opportunity to tender evidence or to rebut the claim of juvenility of respondent No. 2. Thus, the previous decision of JJB was not applicable. 27.3. It was in that context that JJB passed an order for medical examination of respondent No. 2. In compliance with such an order, the Medical Board submitted a report on 27.07.2021 assessing the age of respondent No. 2 as about 21 years. 27.4. JJB accepted the medical report dated 27.07.2021, wherein the age of respondent No. 2 was assessed as about 57 2026:HHC:26975 21 years. On that basis, respondent No. 2 was found to be more than 18 years of age on the date of the incident. Thus, respondent No. 2 was held to be an adult as on 17.02.2021, i.e. the date of the incident. 28. Admittedly, the line of reasoning adopted by the JJB is totally fallacious. When the concerned birth certificate from the school was available as well as the birth certificate issued by the Meerut Municipal Corporation, JJB could not have opted for ossification test. The statute is very clear that only in the absence of the certificates under clause (i) and clause (ii) of subsection (2) of Section 94 can the JJB order for an ossification test or any other medical test to determine the age of the juvenile. The certificate of the Meerut Municipal Corporation was issued on 08.06.2020, before the date of the incident. In any event, it was not open to the JJB to go behind the available school certificate or the birth certificate of the Corporation and record evidence to examine the correctness or otherwise of such certificate. This is not the mandate of Section 94(2) of the JJ Act, 2015. Therefore, the learned Additional District and Sessions Judge was justified in reversing such a decision of the JJB. Learned Additional District and Sessions Judge gave preference to the date of birth of respondent No. 2 mentioned in the high school certificate, wherein his date of birth was mentioned as 08.09.2003. Thus, respondent No. 2 was 17 years, 3 months, 10 days on the date of the incident. Accordingly, he was declared a juvenile delinquent. 41. These judgments were followed in V (supra). 42. Therefore, as per Rule 12(3(a)(ii) of the Juvenile Justice Rules, 2007 and Section 19(4) of the Juvenile Justice Act, 2015, the certificate from the school which the victim had first attended has 58 2026:HHC:26975 to be preferred to the birth certificate issued by the municipal corporation or gram panchayat. In the present case, the certificate from the school first attended by the victim was not produced, and there is no legally admissible evidence to prove that the victim was a minor on the date of the incident. However, this will not make much difference to the prosecution's case. The victim was a woman who was subjected to sexual intercourse without her consent. The ingredients of Sections 375 and 376 of the IPC are similar to the ingredients of Sections 3 and 4 of the POCSO Act. In fact, Sections 3(a to d) are identical to Sections 375 (a to d) after the amendment made by the Criminal Law Amendment Act, 2013. Therefore, the accused had a notice of the ingredients of the offence with which he was charged. He was informed about the fact that he was being tried for raping a girl, and he was not prejudiced in any manner in his defence. The only difference is in the Section, because instead of Section 376 of the IPC, Section 4 of POCSO was mentioned. Therefore, the accused can be convicted of the commission of an offence punishable under Section 376 of the IPC and the conviction of the accused is altered from Section 4 of the POCSO Act to Section 376 of the IPC. 59 2026:HHC:26975 43. In view of the above, the present appeal is partly allowed, and the conviction of the accused is altered from Section 4 of the POCSO Act to Section 376 of the IPC. 44. Let a production notice be issued to the Superintendent of Lala Lajpat Rai District Air Correctional Home, Dharamshala, District Kangra, H.P. to produce him before the Court for hearing on the quantum of sentence on 16.07.2026. (Rakesh Kainthla) Judge 7th July, 2026 (Nikita)