[2026:RJ-JP:3288-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR (1) D.B. Criminal Appeal No. 49/2018 Himmat Meena S/o Shri Badri Narain, R/o Kalya-Ki-Dhani, Tan Nangal Suwavtan, Police Station, Amer, District Jaipur, at present lodged in the Central Jail, Jaipur. ----Appellant-accused Versus State of Rajasthan through PP. ----Respondent Connected With (2) D.B. Criminal Appeal No. 50/2018 Ramkesh S/o Hanuman Sahai, R/o Chitanu, Police Station Chandwaji, District Jaipur. At present in Central Jail, Jaipur. ----Accused-Appellant Versus State of Rajasthan through PP. ----Respondent For Appellant(s) : Mr. Ashvin Garg Mr. Mahendra Choudhary Mr. Mohit Goyal Ms. Vaishnavi Mr. Rinesh Gupta, Mr. Sarwat Alam, Mr. Chandrakala Sahu and Mr. Gorang Agarwal For Respondent(s) : Mr. Shree Ram Dhakar, PP Mr. Naresh Gupta, PP with Ms. Neha Goyal Mr. Satya Pal Poshwal with Mr. Harshit Mehta and Ms. Seema Jharwal HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI Judgment Date of Conclusion of Arguments : : 23/01/2026 Judgment Reserved On : : 23/01/2026 [2026:RJ-JP:3288-DB] (2 of 31) [CRLAD-49/2018] Whether the full judgment or only the operative part is pronounced : : Full Judgment Judgment Pronounced On : : 30/01/2026 Per Hon’ble Mahendar Kumar Goyal, J. **** Since, both criminal appeals are directed against the common judgment, the same have been heard together and are being decided by this common judgment. These criminal appeals are directed against the judgment dated 19.12.2017 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, Jaipur (for brevity ‘the learned trial Court’) in Sessions Case No.54/2017 (25/2013), NCV No.120/2017 whereby, the accused-appellants (for short, ‘the appellants’) have been convicted and sentenced as under:- Accused-Appellant-Himmat Meena S/o Shri Badri Narain 1.Section 363 IPC: Seven years’ rigorous imprisonment and fine of ₹10,000/-; in default whereof, three months’ additional simple imprisonment. 2. Section 364 IPC: Ten years’ rigorous imprisonment and fine of ₹10,000/-; in default whereof, three months’ additional simple imprisonment. 3.Section 366(A) IPC: Ten years rigorous imprisonment and fine of ₹10,000/-; in default whereof, three months’ additional simple imprisonment. 4.Section 376(2-G) IPC: Life imprisonment and fine of ₹50,000/-; in default whereof, one year’s additional simple imprisonment. 5. Section 394 IPC: Ten years’ rigorous imprisonment and fine of ₹20,000/-; in default whereof, six months’ additional simple imprisonment. 6. Section 302 IPC: Life imprisonment and fine of ₹1,00,000/-; in default whereof, two years’ additional simple imprisonment. [2026:RJ-JP:3288-DB] (3 of 31) [CRLAD-49/2018] 7. Section 201 IPC: Seven years’ rigorous imprisonment and fine of ₹10,000/-; in default whereof, three months’ additional simple imprisonment. 8. Section 323 IPC: One year’s simple imprisonment and fine of ₹1,000/-; in default whereof, seven days’ additional simple imprisonment. 9. Section 341 IPC: One month’s simple imprisonment and fine of ₹500/-; in default whereof, seven days’ additional simple imprisonment. 10. Section 3/4 POCSO: Ten years’ rigorous imprisonment and fine of ₹20,000/-; in default whereof, six months’ additional simple imprisonment. 11. Section 5/6 POCSO: Life imprisonment and fine of ₹50,000/-; in default whereof, one year’s additional simple imprisonment. All the sentences to run concurrently. Accused-Appellant-Ramkesh S/o Hanuman Sahai Section 412 IPC: Five years’ rigorous imprisonment and fine of ₹10,000/-; in default whereof, three months’ additional simple imprisonment. The relevant facts in brief are that the prosecutrix Ms. ‘K.J.’ lodged a written report dated 02.02.2013 (Ex.P/1) with the Station House Officer, Police Station Amber, wherein, it was stated that Suraj telephoned her to meet him whereupon, she went to the roof of Dharamshala through her roof and found two boys there with whom she went to Suraj whereafter, they all went on a motor-cycle to a place in between the mountains of Jain Mandir ahead of Kukas. It was alleged that there, they murdered Suraj with a knife and stones and thereafter, apprehending presence of some person, they took her to another place and there, she was subjected to rape by the appellant-Himmat Meena. It was averred that although, [2026:RJ-JP:3288-DB] (4 of 31) [CRLAD-49/2018] Himmant Meena wanted to terminate her but, on request of another accused, she was spared. It was also stated that on her request, they left her near Saiwar Hospital, a place near to her home. Based thereupon, an FIR No. 58 dated 02.02.2013 came to be lodged for the offence under Sections 376(G), 363, 364, 366, 394, 323, 341, 34 IPC and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (for short- ‘POCSO Act, 2012’). After investigation, while, the appellant-Himmat Meena was charge-sheeted under Sections 363, 364, 366 (A), 376 (2-G), 394, 302/34, 201, 323, 341 of IPC and Sections 3/4 and 5/6 of POCSO Act, 2012, charge-sheet against appellant- Ramkesh was filed under Section 412 IPC. Against co-accused Rajesh @ Kundia and Sultan Khan, the charge-sheet was submitted before the Juvenile Justice Board and against accused-Hanish Khan, the charge-sheet under Section 412 IPC was filed on 16.11.2017. The accused-Rajesh @ Kundia was acquitted of the charges under Sections 323, 366A, 394, 376(2G), 201 IPC and Section 3/4 and Section 6 of the POCSO Act, 2012 and was convicted for the offence under Section 341, 364 and 302/34 IPC and the appellant-Sultan Khan was acquitted of the charge under Section 412 IPC extending him benefit of doubt by the learned Juvenile Justice Board No.1, Jaipur Metropolitan, Rajasthan vide judgement dated 18.02.2022. The accused Hanish Khan was acquitted vide order dated 29.04.2024 of the charge under Section 412 IPC by the Special Judge, POCSO, Jaipur in Sessions Case No.54/2017 (25/2013). [2026:RJ-JP:3288-DB] (5 of 31) [CRLAD-49/2018] Assailing the impugned judgement dated 19.12.2017, learned counsels for the appellants submitted that the learned trial court has erred in recording their conviction based on surmises and conjectures even in absence of legally admissible evidence against them. Shri Ashvin Garg, learned counsel for the appellant- Himmat Meena, submitted that the prosecution has miserably failed to establish that he has either murdered Suraj or subjected the prosecutrix to kidnapping, rape or loot. Inviting attention of this Court towards the written report (Ex.P1) lodged by the prosecutrix, he contended that it lacked allegation of subjecting her to rape at the first scene of crime whereas, in her court statement, she has alleged that she was subjected to rape by the appellant twice; at the first scene of crime and again, at the second scene of crime where she was taken by the appellants after murdering Suraj at the first scene of crime. Learned counsel further submitted that although, as per the rapat rojnamcha (Ex.P43), the mother of prosecutrix has informed that two boys were taking a girl on their motorcycle; but, while the mother did not appear in witness box, her aunt Smt. Mamta Devi (PW4) as also her father Shri Raj Kumar Jain (PW5) have categorically stated that she returned at 10.30 pm, narrated in detail the whole incident whereafter, her mother informed the police telephonically. Shri Garg also asserted that the allegation of rape is not medically corroborated and sole testimony of the prosecutrix does not inspire confidence as to its credibility inasmuch as it is full of [2026:RJ-JP:3288-DB] (6 of 31) [CRLAD-49/2018] contradictions and improvements on material aspects. He canvassed that it is admitted case of the prosecution that the appellant was unknown to the prosecutrix before she saw him first on the fateful day and his test identification parade was conducted on 14.02.2013 whereas, the prosecutrix has categorically admitted during her cross examination as PW1 that she has already seen him on 07.02.2013 when they had gone together to the scene of crime for preparation of the site plan (Ex.P5). He also submitted that dead body of Suraj was found on the third day of incident despite prosecution evidence that a very large number of police personnel were employed to search the same on second day which raises a serious doubt as to the veracity of the prosecution story. Learned counsel submitted that the learned trial court erred in recording his conviction on the premise that the sole impression of the shoe, allegedly worn by him at the time of incident, matched with the foot moulds lifted from the scene of crime ignoring and overlooking that the same were not lifted in accordance with law. Shri Garg argued that the learned trial court did not appreciate that the medical opinion about the age of the prosecutrix was not conclusive so to adjudge her minor on the date of incident while recording his conviction under the POCSO Act, 2012. He, therefore, prayed that the impugned order be quashed and set aside and he may be acquitted of the charges framed against him. He, in support of his submissions, relied upon following judgments: [2026:RJ-JP:3288-DB] (7 of 31) [CRLAD-49/2018] 1. Suresh N. Bhusare & Ors. vs. State of Maharashtra- AIR 1998 SC 3131; 2. Hafiz Khan vs. State of Rajasthan, S.B. Criminal Appeal No.172/1990 dated 8th April, 2024; 3. Sunder & Ors. vs. State of Rajasthan-2015 (1) Cr.L.R. (Raj.) 502; 4. Gireesan Nair & Ors. Etc. vs. State of Kerala-(2023) 1 SCC 180; 5. Dola & Ors. vs. The State of Odisha-AIR 2019 SC 4020; 6. Rajak Mohammad vs. State of Himachal Pradesh- (2018) 9 SCC 248; 7. Arsad vs. State of Rajasthan, D.B. Criminal Appeal No.124/2021 dated 08.08.2025. Shri Rinesh Gupta, learned counsel for the appellant- Ramkesh submitted that the learned trial court erred in recording his conviction without appreciating that no ingredients existed on record to establish his guilt under Section 412 IPC. He, therefore, prayed that the judgment impugned be quashed and set aside and he may be acquitted of the charge framed against him. Per contra, learned Public Prosecutor assisted by Shri S.P. Poshwal, learned counsel for the complainant, opposing the submissions raised and supporting the findings recorded by the learned trial court vide its judgment dated 19.12.2017, prayed for dismissal of the appeals. Heard. Considered. A perusal of the impugned judgment dated 19.12.2017 reflects that the learned trial court has relied upon the ocular testimony of the prosecutrix (PW1) and has held that it was duly corroborated and supported by the testimony of Smt. Mamta Jain (PW4) and Shri Rajkumar Jain (PW5). [2026:RJ-JP:3288-DB] (8 of 31) [CRLAD-49/2018] So far as the testimony of the PW4 and PW5-Bua and father of the prosecutrix respectively, is concerned, indisputably, the same is based on hearsay inasmuch as they have categorically admitted during their cross-examination that they did not witness the incident and have deposed as apprised by the prosecutrix. Therefore, in our considered view, the learned trial court erred in holding that the testimony of the prosecutrix stood corroborated from their deposition. Thus, we are left with sole testimony of the prosecutrix besides recovery of incriminating material from the appellants. Genesis of the prosecution case is Ex.P1-the written report dated 02.02.2013 lodged by the prosecutrix at Police Station Amber at about 2:30 AM wherein, it was alleged that at about 8:00 PM, two accused including the appellant had taken her along with Suraj to a place in between Jain Mandir mountains ahead of Kukas where, Suraj was murdered and after taking her to another place, she was subjected to rape by the appellant-Himmat Meena. It was averred that on her request, she was left near her house by the accused. However, as per report No.47 dated 01.02.2013 (Ex. P43), a telephonic message was received in the Police Station Amber at about 10:50 PM from Sunita W/o Rajkumar Jain R/o Saiwar Bus Stand-her mother informing that two boys were taking a girl and thereafter, during the same conversation, Kailash S/o Mohanlal informed that a girl was being beaten whereupon, Rajpal Singh-ASI, along with other police personnel, left for the village. As per report No. 48, at about 11:15 PM, Shri Rajpal [2026:RJ-JP:3288-DB] (9 of 31) [CRLAD-49/2018] Singh telephonically informed that he found the matter to be of serious nature and requested the SHO to reach the village whereupon, the SHO along with other police personnel left the thana. As per the testimony of prosecutrix (PW1), Mamta Jain (PW4) and Rajkumar Jain (PW5), she had returned to her home at about 10:30 PM and had disclosed the entire incident to her parents as also to her Bua whereafter, her mother Smt. Sunita had telephoned the police station and informed them about the whole incident but, the report No. 47 reflects that Smt. Sunita had only informed that two boys were taking away a girl and one Kailash informed that a girl was being beaten. Shri Rajpal (PW13) has deposed that when he reached the village Saiwar, Shri Rajkumar Jain and his wife Smt. Sunita both informed that two boys were taking their daughter and when he called the girl, she also informed that two boys had taken her on a motorcycle and had left her back. During his cross- examination, he stated that at the time, the girl informed him neither their name nor, their physical features. He has further stated that despite enquiring specifically about their name and address, she disclosed their identity only as two boys. Thus, the report (Ex. P43) as also deposition of Shri Rajpal Singh (PW13) raises a serious doubt about the prosecution story. Indisputably, as per the prosecution case, before Smt. Sunita- mother of the prosecutrix had telephoned the police station at about 10:50 PM, the prosecutrix had already informed her parents as well as other family members of the entire incident [2026:RJ-JP:3288-DB] (10 of 31) [CRLAD-49/2018] but, conspicuously, the police was only informed that two boys were taking a girl even without disclosing that the girl was her daughter. Further, the prosecution is completely silent as to identity of Kailash S/o Mohanlal who has also informed, during the same call, that one girl was being beaten. As per Shri Rajpal Singh, despite asking, the prosecutrix simply informed that two boys had taken her on a motorcycle and had left her back and did not disclose either their name or, any other identity whereas, as per her testimony as PW1, the testimony of her Bua (PW4) and her father (PW5), she had narrated the entire incident in graphic details before her mother had informed the police. Conspicuously, the prosecution has offered no explanation for this crucial discrepancy. It may also be noteworthy here that although, the prosecutrix is claimed to be aged about 15 years at the relevant time, she was allegedly kidnapped by two accused at night, her friend Suraj, for whom she had left the home to marry, was murdered in front of her and she was subjected to rape twice stripping her naked on each occasion; but, the testimony of Shri Rajpal Singh does not disclose her demeanor such as, she was either shocked or horrified or even nervous rather, despite upon asking by him, she disclosed nothing except as stated hereinabove. We find it implausible that a girl of such a tender age would keep her calm and composure in the aforesaid circumstance and would disclose nothing to the police personnel who visited her house first after commission of the murder and rape and we also do not find any justification behind this singular behaviour which is [2026:RJ-JP:3288-DB] (11 of 31) [CRLAD-49/2018] of significance in the attending facts and circumstances, which we will discuss later on at the appropriate stage. Thereafter, the written report was lodged at about 2.30 am wherein, the allegation of rape is only once. However, the prosecutrix has, as PW1, alleged that she was subjected to rape by the appellant-Himmat Meena at the first scene of crime where the accused had murdered Suraj and thereafter, she was taken to another place where she was again subjected to rape. However, as already observed, in her written report (Ex.P1), the allegation of rape is only once. Further, the testimony of PW4 and PW5-Bua and father of the prosecutrix respectively reflects that they have stated that when she returned back to home at about 10.30 PM, she disclosed that she was subjected to rape twice by the appellant and the written report has been lodged much thereafter but, the allegation of rape, at the scene of crime where Suraj was murdered, is absent in it. A perusal of the written report reflects that it was handwritten by the prosecutrix apparently after much deliberation and careful thinking inasmuch as every mistake in it; howsoever trivial or insignificant it might be, has not only been rectified but, she has put her whole first name as initial against every mistake. It also reflects that not only her parents but Bua has also accompanied her to the Police Station. In view thereof, absence of allegation of subjecting her to rape at the first scene of crime raises a serious doubt as to the veracity of the allegation in her deposition as PW1. This discrepancy has been brushed aside by the learned trial court [2026:RJ-JP:3288-DB] (12 of 31) [CRLAD-49/2018] holding that in her Section 164 Cr.P.C. statement (Ex.P8), she has alleged to have been subjected to the rape twice; but, we find that this approach of the learned trial court is against the well settled legal principle that statement of a witness recorded under Section 161 Cr.P.C. or under Section 164 Cr.P.C. is not a substantive piece of evidence and can be used only to contradict the court deposition. We further find from the testimony of the prosecutrix that she has justified their movement to the second scene of crime stating that when, at the first scene of crime, they heard voices of few persons, the accused took her to another place on the motorcycle. However, when suggested during her cross examination as to why she did not raise alarm despite hearing voices of some persons, she stated that it was pitch dark and those persons were not visible to them. However, we are not convinced with the explanation. Furthermore, as per testimony of prosecutrix, she was subjected to the offence of rape, each time on rough terrain which is also reflected from the site plan (Ex.P3), the first scene of crime, i.e. jungle and the site plan (Ex.P5), the second scene of crime i.e. a barren field but, conspicuously, she has suffered no mark of injury on her back side which is evident from her medico legal examination-Ex.P6 dated 02.02.2013 conducted at about 4.30 pm and Ex.P7 dated 02.2.2013 conducted at about 12.45 AM. It gains significance in view of the allegation by the prosecutrix that on each occasion, she was stripped off naked before subjecting her to rape. Dr. Mohan [2026:RJ-JP:3288-DB] (13 of 31) [CRLAD-49/2018] Singh Rathore (PW2) and Dr. Alpana (PW3), who have examined prosecutrix medically, have categorically deposed during their cross-examination that there was no mark of violence on her private parts suggestive of recent rape. In the case of Dola (supra), the allegation was of subjecting the prosecutrix to rape lying her on the field and she has admitted that the spot was not plain but, was uneven; however, there was no injury on the back side of her body which, was found to be a suspicious circumstance, amongst others, by their Lordships to warrant conviction of the appellants for the offence of rape. Moreover, the learned trial court held that since group of the blood found in the vaginal swab of the prosecutrix matched with that of the blood found on the jacket of the accused as also on the sandal of the victim, the appellant is guilty of the offence of rape but, we are not convinced with the reasoning. Firstly, it is not the prosecution case that either the prosecutrix or the appellant-Himmat Meena suffered any injury in or on her/his private part respectively at the time of rape so as to reflect presence of blood in the vaginal swab. Secondly, as per the medical report (Ex.P6) and statement of Dr. Mohan Singh Rathore (PW2), her hymen was old ruptured. Thirdly, the Investigating Officer Shri Sundar Singh Sagar (PW14) has categorically admitted that the blood group either of the prosecutrix or of the deceased Suraj or of the appellant was never tested. Fourthly, we find that the recovery of the jacket at the instance of accused is clouded under suspicious [2026:RJ-JP:3288-DB] (14 of 31) [CRLAD-49/2018] circumstances. The appellant was arrested on 04.02.2023 vide arrest memo (Ex.P12) and on his disclosure statement, the subject jacket was allegedly recovered on 06.02.2013 at about 10.45 am vide Ex.P32 and the recovery site plan Ex.P39 reflects that it was from an open field. However, the Investigating Officer has admitted, during his cross examination, that when the appellant was apprehended, his driver Sanjay had seized the jacket of Himmat Meena from bushes. He has further admitted that in the daily newspaper dated 05.02.2013 (Ex.D2), a news was published that his driver Sanjay has recovered clothes. Therefore, recovery of the jacket at the instance of appellant-Himmat Meena is rendered doubtful. Moreover, he has also admitted that the place of recovery of the jacket is an open field accessible to all which is also corroborated from the testimony of Shri Ramphool (PW10), one of the witnesses to the seizure memo. This factum also renders the recovery of the jacket doubtful. So far as sandal is concerned, the learned trial court has held that the same belonged to the victim but, the evidence on record suggests otherwise. The prosecutrix has stated as PW1 that she was wearing slippers and the sandal was given to her by the accused Rajesh for wearing at the first scene of crime. She also stated that the sandal did not belong to her rather, during her cross examination, she has deposed that she was unaware to whom the sandal belonged. In view of the aforesaid evidence, we are not convinced that the learned trial court was justified in connecting the [2026:RJ-JP:3288-DB] (15 of 31) [CRLAD-49/2018] appellant with the offence of rape on the basis of matching of the blood group in the vaginal swab of the prosecutrix with that on his jacket. In so far as identity of the appellant is concerned, the prosecutrix (PW1) has categorically deposed that she has never seen the appellant before meeting him on the roof of Dharamshala. The prosecution relies upon Ex.P74, the test identification parade report of the appellant dated 14.02.2013 to drive their point that he was identified by the prosecutrix in it. However, from the evidence of record, it is reflected that before conducting the TIP on 14.02.2013, the prosecutrix has already seen the appellant rendering it of no evidentiary value. She has stated in her cross examination that at the time of preparation of site plan-Ex.P5-the second scene of crime on 07.02.2013, the police has also taken the accused along with them. Further, her Bua (PW4) has admitted during her cross examination that she saw the accused for the first time in the Police Station where the prosecutrix informed her of them being the accused. Their Lordships have held, in the case of Gireesan Nair (supra), as under: “28. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form, i.e., physically, through photographs or via media [2026:RJ-JP:3288-DB] (16 of 31) [CRLAD-49/2018] (newspapers, television etc…), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh and Ors v. State of U.P.-(2003) 12 SCC 554 and Suryamoorthi and Anr. v. Govindaswamy and Ors.-(1989) 3 SCC 24. 29. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra-(1998) 5 SCC 103. Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh-(2020) 10 SCC 733 and Ramkishan Mithanlal Sharma v. State of Bombay-(1955) 1 SCR 903.” In the backdrop of aforesaid precedential law, we have no hesitation in holding that the learned trial court erred in holding the appellant guilty of the charges levelled against him relying upon the TIP (Ex.P74). Although, it is trite law that an accused can be convicted for the offence of rape on the sole testimony of the prosecutrix but, it should be trustworthy inspiring confidence as to guilt of the accused and should be free from any suspicion. However, in the conspectus of aforesaid analysis, we do not find the testimony of the prosecutrix (PW1) to be of sterling worth to hold the appellant guilty of the offence of rape. In view of the aforesaid findings wherein, we have not found the appellant-Himmat Meena guilty of the offence of rape, the issue of minority of the prosecutrix is rendered not of much significance but, we find from the impugned judgement [2026:RJ-JP:3288-DB] (17 of 31) [CRLAD-49/2018] dated 19.12.2017 that she has been held to be minor only on the basis of medical opinion based on ossification test report. While holding that the letter/certificate issued by the Headmaster of Shyam Senior Secondary School, Saiwar reflecting date of birth of the prosecutrix as 12.07.1997 could not be read in evidence as it was not proved in accordance with law, relying upon the Ex.P10, her medical examination report and the testimony of Dr. Mohan Singh Rathore (PW2) wherein, he has opined her age to be in between 16-18 years, she has been held to be not above 18 years and therefore, minor. In this regard, we find that although, the prosecutrix has categorically stated during her cross examination as PW1 that in U.P., she used to study in Indira Gandhi Kanya Junior High School and after taking transfer certificate from there and depositing the same in the Shyam Senior Secondary School, she studied there from Class VII to X. However, no document was submitted to show her correct date of birth recorded in the school record except one certificate which, as observed hereinabove, was not proved in accordance with law. So far as determination of age of the prosecutrix based on medical opinion is concerned, the law in this regard is well settled. A three-Judges Bench of the Hon’ble Supreme Court has, in the case of Rajak Mohammad (supra), held as under: “7. While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological [2026:RJ-JP:3288-DB] (18 of 31) [CRLAD-49/2018] examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.” Relying upon the aforesaid citation and a plethora of other precedential law, a coordinate bench of this Court has, in the case of Arsad (supra), authoritatively held as under: “24. The question whether lower side of the age estimation report or the upper side of the age estimation report of a victim in POCSO cases, where the age of the victim is proved through bone age ossification test, is required to be considered and whether the principle of "margin of error" is to be applicable or not in cases under the POCSO Act, where the age of a victim is to be proved through bone age ossification test, came to be answered by the Hon'ble Delhi High Court in Court on its Own Motion vs. State of NCT of Delhi online reported in MANU/DE/4353/2024. The relevant Para Nos. 19, 20, 21, 22 & 44, 45 & 46 of the judgment reads thus :- "19. If one has a school certificate or birth certificate, then obviously there would not be any difficulty, provided these documents are duly [2025:RJ- JP:29198-DB] (12 of 19) [CRLAD-124/2021] proved before the Court in accordance with law and are admitted in evidence. 20. The age given in any such birth certificate or school record would be a specific and fixed one, being based on date of birth. 21. In absence of said documents, when the Court orders for ossification test, such test though gives us the estimation of age but it does not provide us with precise and definite age. It rather gives us a reference range, which, generally, is found to be of two years. 22. In the case in hand also, such estimation age is given as 16-18 years by the concerned Medical Board. The issue is whether age of the victim should be taken on the lower side or on the upper side of such range. What ought to be the approach of the Court - whether to consider the age of the child victim as 16 years or [2026:RJ-JP:3288-DB] (19 of 31) [CRLAD-49/2018] as 18 years? And secondly and more importantly, whether any further "margin of error" is also to be applied on either side, thereby making the age range, in context of present situation, from '16 to 18 years' to '14 to 20 years'." ... xxx .... xxx .... xxx 44. The ossification test determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. It evaluates the process of the bone formation based on fusion of joints between birth and generally upto the age of 25-30 years. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for calculation of the bone age is radiography of the hand and wrist until the age of 18 years as the elongation of the bone is complete after adolescence. Beyond that, the medial age of clavicle is used for bone age calculation till the age of 22 years. Of course, age determination using ossification test does not yield accurate and precise conclusions, particularly after the examinee crosses the age of 30 years. In Mukarrab(supra), Hon'ble Supreme Court has observed as under:- "26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be [2025:RJ-JP:29198-DB] (13 of 19) [CRLAD-124/2021] adopted solely on the basis of the medical opinion by the radiological examination. At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows: "In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development." Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances." [2026:RJ-JP:3288-DB] (20 of 31) [CRLAD-49/2018] 45. Thus, the legal position seems fairly settled and quite apparently, the attention of the learned Trial Court was not drawn to Division Bench judgment of this Court as given in State v. Basir Ahmad (supra). We have no reason to come to any different opinion. Moreover, we have already taken note of the judgment given by Hon'ble Supreme Court in Rajak Mohammad (supra) which leaves no uncertainty in our minds in answering the Reference in question. 46. As an upshot of our foregoing discussion, the Reference is answered as under: - (i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of [2025:RJ-JP:29198- DB] (14 of 19) [CRLAD-124/2021] the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test? Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on 'bone age ossification report', the upper age given in 'reference range' be considered as age of the victim. (ii) Whether the principle of "margin of error" is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test. Ans: Yes. The margin of error of two years is further required to be applied." 25. From the ratio of law enunciated by the Hon'ble Supreme Court and the Hon'ble High Courts, it is settled that ossification test determines age based on the "degree of fusion of bone" by taking the X-ray of a few bones. It evaluates the process of the bone formation based on fusion of joints between birth and generally upto the age of 25-30 years. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for calculation of the bone age is radiography of the hand and wrist until the age of 18 years as the elongation of the bone is complete after adolescence. Beyond that, the medial age of clavicle is used for bone age calculation till the age of 22 years. Of [2026:RJ-JP:3288-DB] (21 of 31) [CRLAD-49/2018] course, age determination using ossification test does not yield accurate and precise conclusions, particularly after the examinee crosses the age of 30 years. 26. Applying aforesaid ratio of law and the well accepted method of Modi's Medical Jurisprudence and Toxicology, in the case in hand, as per prosecution, age of the victim No. 2 was stated to be 15-16 years on the date of incident. As per statement of P.W. 9- Dr. Sriram Karwasara, age of the victim No. 2 was between 15-16 years on the date of incident and it has also been admitted by P.W. 9 in the cross-examination that difference in age opinion given on the basis of x-ray is upto two years. There is no statement made by the doctor (P.W. 9) that age of the victim No.2 was below 16 years. Therefore, in light of the ratio of law propounded by the Hon'ble Apex Court, margin of error of 2-3 years in age on ossification test is natural and in such circumstances, if margin error of 2-3 years in age on ossification test is taken in the age of the prosecutrix, then she was more than 18 years of age at the time of incident. Hence, in our considered opinion, conclusion arrived at by the trial court regarding age of the victim No. 2 is not sustainable.” In view of the aforesaid precedential law wherein, it is held that margin of error of 2-3 years in determination of age based on ossification test is natural and benefit of doubt must go in favour of accused, we are not persuaded to affirm the finding of the learned trial court that the prosecution was able to establish prosecutrix’s minority at the time of alleged incident. [2026:RJ-JP:3288-DB] (22 of 31) [CRLAD-49/2018] In so far as the allegation of murder of Suraj is concerned, it is prosecution story that the prosecutrix was in love with him and they have had hatched a plan to run away to marry. As per the prosecutrix (PW1), she received a telephonic message from Suraj at about 7-7.30 pm to come on roof but; there she found two accused including the appellant-Himmat Meena, who took her to Suraj. From the aforesaid testimony, it can safely be inferred that the two accused must have been close friends of Suraj lest he would not have sent them to fetch her. In any case, it is not the prosecution case that they were having any enmity with the deceased so as to give rise to any cause for his murder. Furthermore, the prosecutrix has, during her cross examination as PW1, while deposing that she heard voices of few persons at the first seen of crime but, when suggested that those persons might have assaulted the deceased, replied that in absence of enmity of those persons with the deceased, there was no occasion for them to have assaulted him. However, the prosecution case is completely silent as to motive of the appellant to murder Suraj. The loot of the articles carried by the deceased does not appear to be the primary reason behind his murder. As already held, the accused who took the prosecutrix to the deceased must have been good friends. Further, from the pant of the deceased, the police has recovered his mobile phone as also Rs.5000 cash. Had the loot been motive of the accused [2026:RJ-JP:3288-DB] (23 of 31) [CRLAD-49/2018] including the appellant Himmat Meena, it would not have been left in his pocket. Thus, the prosecution is completely silent as to motive behind murder of Suraj and we also are unable to unearth it from the evidence available on record. We notice that as per the testimony of the prosecutrix (PW1), the appellant had inflicted a knife blow on the temple of deceased but, there is no corresponding injury on his person. She has further alleged that the appellant had inflicted a blow on back of the head of the deceased with a stone and repeated the blows. She has also deposed that the appellant instructed the co-accused Rajesh to hit the deceased till he died. In her cross examination, she has stated that repeated stone blows were inflicted to the deceased. It is also prosecution case that dead body was dragged on very rough terrain, i.e., dense jungle to a distance of about 153 feet (Ex.P3-the site plan); however, as per his postmortem report (Ex.P11), the deceased has received only three injuries on his body; an incised wound in front of left ear, a bruise on left shoulder and a lacerated wound size of 6 inches x 1 inch over the left parietal occipital region with underline multiple fractures. Therefore, the allegations of brutal murder of Suraj by inflicting a knife blow, multiple blows with stones and dragging of his body is not medically corroborated. Moreover, a perusal of the judgment impugned dated 19.12.2017 reflects that one of the circumstances relied upon by it to record conviction of the appellant is matching of foot [2026:RJ-JP:3288-DB] (24 of 31) [CRLAD-49/2018] moulds lifted from the place of crime with that of sole of his shoes in FSL report (Ex. P54). The appellant was arrested on 04.02.2013 vide Ex. P12. Based on his disclosure statement dated 05.02.2013 (Ex. P50), the shoes allegedly worn by him at the time of incident were seized on 05.02.2012 vide Ex. P31 from the police station where he was in custody. Thereafter, moulds of the sole of the shoes were also lifted at the police station. While, Shri Ramprakash, one of the witnesses to the seizure memo (Ex. P31) was not examined, the another witness Shri Ramphool Meena (PW10) has stated, during his cross-examination, that shoes were given by the appellant- Himmat to the police at the scene of crime and not at the police station. He has further deposed that his signature on the seizure memo (Ex. P31) as also on the seizure memo of the moulds lifted from his shoes were obtained at the scene of crime. In view thereof, the recovery of shoes as well as lifting of its moulds at the police station at the instance of the appellant is rendered doubtful rendering the FSL report (Ex. P54) not reliable. Furthermore, Ex. P20 reflects that the moulds of footprint of the shoes at the place of incident were recovered on 03.02.2013 in presence of the witnesses S/Shri Badri Narain and Santosh Kumar. Conspicuously, none of the aforesaid witnesses were examined by the prosecution to prove the seizure memo. Moreover, the prosecution could not prove that the shoes, moulds whereof were lifted, belonged to the appellant only as there is evidence that other accused/some persons were also present there. The seizure memo also does [2026:RJ-JP:3288-DB] (25 of 31) [CRLAD-49/2018] not reflect that the moulds were taken in presence of any Magistrate/responsible Officer or even independent witnesses. Underlining the important of uplifting of moulds, a Division Bench of this Court has, in the case of Sunder & Ors. (supra), held as under:- “31. According to Rule 6.26 of the Rajasthan Police Rules, 1965 the procedure for securing the record of such footprint shall be similar to that prescribed for holding a T.I. parade of suspects under Rule 7.31. This rule prescribes an elaborate procedure for holding a test identification of the footprints. However, in the present case, the police neither secured the attendance of a Magistrate, nor associated witnesses of reliable character, nor followed the procedure prescribed by this rule. For, according to Exhibit-P.34 the footprints were lifted before two Police Constable, namely Dayanand and Ghamsi Ram. The investigating officer, Gopal Singh (PW- 30) has not given any explanation for non-procuring of the Magistrate of the highest rank, and for non-procuring of a witness of reliable character. 32. Further, Ghamsi Ram (PW-23) admits in his cross- examination that "the names of the accused were not tagged with the impression of their foot. It is true that at the time of taking the foot impression by Exhibit P-34, only police personnel were present and no outside person was present at that time. No person from outside was called. It is true that the foot impressions which were taken are not before me in the court. It is true when the foot impressions were taken, a Magistrate was not present at that time". 33. The other witness to this recovery, Dayanand, has not been produced by the prosecution. Thus, again the [2026:RJ-JP:3288-DB] (26 of 31) [CRLAD-49/2018] prosecution has withheld a material witness. Further, the procedure prescribed by law has been flouted by the investigating agency. Neither a magistrate, nor independent witnesses have been associated with taking of the footprints and the foot moulds of the appellants during police custody. 34. Considering the fact that the entire case is based on circumstantial evidence, considering the fact that the prosecution has failed to prove as to where the footprints were lifted from the place of the occurrence, considering the fact that the procedure for lifting the footprint has been flouted, considering the fact that according to Ghamsi Ram (PW-23), the foot prints lifted during the police custody were not even tagged with the names of the appellants, the report of the FSL (Ex.P50) loses all its significance. The said report claims that the footprints lifted from the scene of the crime and the footprints of the accused match perfectly. But the footprint taken by the police seem to be padding made by the police in order to strengthen its case based on circumstantial evidence. Hence, the evidence of the recovery of the footprints of the appellants is clearly unreliable. 35. In the case of Leela Ram and Ashok Vs. State of Rajasthan, 2008 (1) RLW 745, this Court had expressed its opinion that foot impression mould should be taken either before a Magistrate, or at his direction, or under his order. In the case of Mohd. Aman vs. State of Rajasthan-(1997) 10 SCC 44, the Apex Court has disbelieved the evidence of footprint inter alia on the ground that the sample was not taken before a magistrate. The Apex Court further observed that the science of identification of footprints is not a fully developed science. In the case of Balbir Singh and Another Vs. State of Punjab, 1996 (6) Scale 72, the Hon’ble Supreme Court opined that where the [2026:RJ-JP:3288-DB] (27 of 31) [CRLAD-49/2018] prosecution has failed to prove as to whose footprints were lifted and examined, the trial court is unjustified in treating the evidence of the footprint as conclusive circumstance for establishing the complicity of the accused in the crime. Likewise, in the present case, the prosecution has failed to prove as to whose footprints were lifted and from where they were lifted from. Thus, the evidence of the footprints cannot be read against the appellants. Therefore, this court does not find the evidence of footprints as a reliable piece of evidence for convicting the appellants.” Since, in the instant case, there has been complete violation of the aforesaid mandatory conditions, we are of the considered view that the learned trial Court erred in placing reliance upon the FSL report (Ex. P54) while passing the impugned judgement. There are two other circumstances which create doubt over the prosecution story against the appellant. The prosecutrix has claimed to have seen the appellant assaulting the deceased with knife and stones. However, in her cross examination as PW1, she has stated that when they reached the first scene of crime, it was dense jungle and dark. She has further deposed that when the deceased was being assaulted by the accused, she was 10-15 steps away and has stated that since, she has heard sound of stones, she presumed that Suraj was being beaten by them; meaning thereby that even from a distance of barely 10-15 steps, she was not able to see the accused inflicting blows on the body of deceased with stones on account of darkness. However, in the same breath, she has [2026:RJ-JP:3288-DB] (28 of 31) [CRLAD-49/2018] claimed to have seen the appellant inflicting knife blow upper part of which she claimed to be made of a metal like brass. It raises a doubt about veracity of the prosecution case. Furthermore, as per the written report (Ex.P1), the accused took her off the roof at about 8 pm which also stands corroborated from her cross examination as PW1. She has further stated as PW1, that it took them one to one & half hour from there to reach the scene of first crime and 10 minutes after reaching there, the accused took her near a tree. She has claimed that she was dragged by the appellant-Himmat to a distance, was stripped naked and was raped. She has deposed that after rape, the appellant set on a fallen tree trunk and she was also asked to sit and when they heard voices of some person, she was made to wear the clothes and was taken to another place which she had never visited prior. She has alleged that at that place also, she was stripped and was subjected to rape. She has claimed that after making her wear the clothes, she was dropped by the accused on a motorcycle near her house where she reached at 10.30 pm as corroborated by her Bua (PW4) and her father (PW5). Thus, as per her story, she left her home with the accused at about 8 pm, reached the first scene of crime after one to one & half hour where Suraj was murdered, she was stripped naked, was dragged, was raped, was made to wear the cloth again, was taken to another unknown place, was stripped and raped again and was left near her home where she reached at 10.30 pm. Although, learned counsels for the respective parties stated at [2026:RJ-JP:3288-DB] (29 of 31) [CRLAD-49/2018] Bar that the second scene of crime is a little farther from the first scene of crime away from the residence of the victim; but, on assuming it to be a nearby place, it can safely be inferred that it must have taken equal time, even if not longer, which took them to reach the scene of first crime from the house of the prosecutrix i.e. one to one & half hour. In view thereof, it does not seem probable that within such short span of time left say fifteen minutes to half an hour, not only Suraj was murdered but, she was stripped and raped twice at two different places. In view of the aforesaid evidence and the evidence we have analysed while appreciating the allegation against the appellant of subjecting the prosecutrix to rape, we are unable to persuade ourselves to record a finding that the prosecution has been able to establish, beyond reasonable doubt, that the appellant-Himmat Meena committed murder of Suraj. So far as appellant-Ramkesh is concerned, since, the prosecution has failed to establish that the deceased was looted by co-accused, he could not have been held guilty of offence under Section 412 IPC. Moreover, the charge framed against him was of taking the subject articles from the co- accused Himmat to sell the same and getting a sum of Rs.2,000 as commission; but, the prosecution has led no evidence to establish the aforesaid charge. In this regard, the learned trial court did not appreciate that Shri Ramavtar (PW12), who has allegedly purchased the silver and other articles from the appellant as well as Shri Dinesh Chand Saini [2026:RJ-JP:3288-DB] (30 of 31) [CRLAD-49/2018] (PW16), who has left the appellant along with co-accused to Shri Ramavtar, have turned hostile and have not supported the prosecution case. It has further erred in placing reliance upon the testimony of Smt. Urmila Devi (PW7)- mother of the deceased to record a finding that she has identified the articles recovered from the possession of the appellant without appreciating that she has admitted in her cross examination that such article is worn by many females of the Meena Community and there was no identification mark on it to reflect that the same belonged to her. In view thereof, we find that the conviction of the appellant under Section 412 Cr.P.C. is not sustainable. Accordingly, the appeals preferred by the appellants are allowed. The judgement impugned dated 19.12.2017 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, Jaipur is quashed and set aside and the appellants are acquitted of the charges framed against them. The sentence of appellant-Ramkesh was suspended, therefore, his bail bonds are discharged. He need not surrender and shall be at liberty. The appellant-Himmat Meena is in jail. He shall be released forthwith, if not required to be detained in any other case. In view of the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellants are directed to furnish a personal bond in the sum of ₹25,000/- each, and a surety in the like amount before the Registrar (Judicial) of this Court which shall be effective for a period of six months with [2026:RJ-JP:3288-DB] (31 of 31) [CRLAD-49/2018] the stipulation that in the event of Special Leave Petition being filed against the judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. (CHANDRA PRAKASH SHRIMALI),J (MAHENDAR KUMAR GOYAL),J RS/C1-2