1 2026:CGHC:4382-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 137 of 2025 1 - Kundan Sonwani S/o Mahendra Sonwani Aged About 20 Years Present R/o Kukritalab, P.S. Gudhiyari, District Raipur Chhattisgarh Permanent Address Village Chhatera, P.S. Arang, District : Raipur, Chhattisgarh. --- Appellant Versus 1 - State of Chhattisgarh Through Station House Officer, Police Station City Kotwali Raipur, District : Raipur, Chhattisgarh. --- Respondent(s) CRA No. 254 of 2025 1 - Kunal @ Chhagan Lal Yadav S/o Parshuram Yadav Aged About 20 Years R/o Near Kukritalab Satnami Mohalla P.S. Gudiyari District - Raipur (C.G.) ---Appellant Versus 1 - State of Chhattisgarh Through P.S. City Kotwaki District – Raipur, Chhattisgarh. --- Respondent(s) For Appellants : Shri B.L. Sahu and Shri Rekhraj Baghel, Advocates (in CRA No.137 of 2025). : Shri Hanuman Prasad Agrawal, Advocate (in CRA No.254 of 2025). For State : Shri Shalin Singh Baghel, Govt. Advocate. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 27.01.2026 Per, Ramesh Sinha, CJ. 1 Though the matters were listed for orders on applications for suspension of sentence and grant of bail to the appellants, however, with the consent of the parties, both the appeals are heard finally. INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.01.29 18:54:24 +0530 2 Since both the Criminal Appeal arise out of common judgment and same crime number, they are being heard and decided together by this common judgment. 2 Both the appeals have been filed by the appellants against the impugned judgment of conviction and order of sentence dated 28.12.2024 passed by the Additional Sessions Judge, 1st FTSC (POCSO) Raipur in Special Criminal Case (POCSO) No.54/2022 whereby both the appellants have been convicted and sentenced as under : Accused Conviction Sentence Kundan Sonwani 373 IPC RI for 10 years and fine of Rs.1000/-, in default of payment of fine, additional RI for two months. 5(l)/6 of POCSO Act Life Imprisonment & fine of Rs.1000/-, in default of payment of fine, additional RI for two months. Kunal @ Chhagan Lal Yadav 372 IPC RI for 10 years and fine of Rs.1000/-, in default of payment of fine, additional RI for two months. 5(l)/6 of POCSO Act Life Imprisonment & fine of Rs.1000/-, in default of payment of fine, additional RI for two months. 3 Brief facts of the case are that, on 16.02.2022 the victim PW-1 lodged a written complaint Ex.P/12 at Police Station City Kotwali, Raipur, stating that she was well acquainted with accused Kunal Yadav since one year and they used to talk with each other. She was residing at Dulari Nagar on rent and the accused Kunal used to visit her house. On 10.06.2021 on the pretext of marriage he made forceful sexual relation with her. Thereafter, up to 22.10.2021 he repeatedly made physical relation with her despite her protest. He also threatened her not to disclose the incident to anyone and if she disclose to anyone, he 3 would kill her and now he is refusing to marry her. Based on written complaint Ex.P/12, an FIR Ex.P/2 was registered against the accused Kunal Yadav for the offence under Sections 376(2)(n) IPC and Section 6 of POCSO Act. The victim was sent for counseling and the information disclosed by the victim was recorded in the document Ex.P/7. She was sent for her medical examination to District Hospital, Raipur where she was medically examined by Dr. Sonam Deshmukh, PW-4, who gave her report Ex.P/18. While medically examining the victim, the doctor has not noticed any external injuries on her body and opined that no definite opinion can be given regarding recent sexual intercourse. The opinion depends upon the FSL examination and she is habitual to sexual intercourse. The mother of victim refused for DNA Test. Another complaint Ex.P/1 was made by the victim that she made allegation against accused Kunal Yadav and Kundan Sonwani but no action has been taken against Kundan Sonwani and therefore he (Kundan Sonwani) may also be prosecuted for the offence. Spot map Ex.P/3 was prepared by the police and P/4 was prepared by the Patwari. With respect to age of victim, her 5th Class mark sheet was seized vide seizure memo Ex.P/5. When a notice was issued to the victim about the allegation made against the accused persons and to explain the same, she disclosed that due to fear she could not disclose the name of accused Kundan Sonwani at the time of lodging report, but Kundan purchased her from accused Kunal Yadav and he too committed rape upon her. Another spot map Ex.P/13 was prepared by the police. With respect to age of victim, the school register Ex.P/15-C was seized by the police. The appellant Kunal Yadav was arrested on 4 16.02.2022. Appellant Kundan Sonwani was arrested on 29.10.2022. The statement under Section 164 CrPC of victim was recorded. The vaginal slide of victim and underwear of the appellant Kunal was sent for its chemical examination to FSL, Raipur from where report Ex.P/34 was received, according to which, sperms and semen were found present on the sent articles. The appellant Kundan was sent for his medical examination to Dr. B.R. Ambedkar Medical College Hospital, Raipur where he was medically examined by the doctor who found the appellant Kundan capable to perform sexual intercourse. 4 The statement of witnesses have been recorded and after completion of usual investigation, initially charge sheet was filed against the appellant Kunal Yadav for the offence under Sections 376(2)(n) and 506 IPC on 13.04.2022. Thereafter the appellant Kundan Sonwani was arrested on 29.10.2022 and supplementary charge sheet was filed against him for the offence under Section 376(2)(n), 506, 370, 34 IPC, Section 6 of POCSO Act and Section 3(2)(va) of ST&SC Act. 5 The trial court framed charge against the accused Kunal Yadav for the offence under Sections 376(2)(n), 506 IPC and Section 5(l)/6 of POCSO Act on 11.07.2022. On 04.02.2023 additional charge for the offence under Section 370 and 372 IPC and Section 3(2)(v) of ST&SC Act have also been framed against the accused Kunal Yadav. The charge against the accused Kundan Sonwani was framed on 04.02.2023 for the offence under Sections 370, 373, 376(2)(n) and 506 IPC, 5(l)/6 of POCSO Act and Section 3(2)(v) of ST&SC Act. The accused persons denied the charge and claimed trial. 5 6 In order to establish the charge against the appellants, the prosecution has examined as many as 9 witnesses. Statement under Section 313 CrPC of the appellants have also been recorded in which they denied the circumstances appears against them, pleaded innocence and have submitted that they have been falsely implicated in the offence. 7 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellants and sentenced them as mentioned in opening para of this judgment. Hence these appeals. 8 Learned counsel for respective appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the prosecution witnesses which cannot be made basis to convict them in the offence in question. The entire conduct of victim is suspicious throughout the proceeding. There is no cogent and admissible evidence with respect to age of victim that she was minor and less than 18 years of age on the date of incident. School record has not been proved by the prosecution in accordance with law. Initially the victim lodged report against accused Kunal Yadav but subsequently she changed her version saying that Kunal Yadav after committing rape upon her sold her to accused Kundan Sonwani and he (Kundan) too have committed rape upon her which itself raise a serious doubt on the prosecution’s case. In her medical examination, no injuries have been found on the body and there is no sign of any protest. The victim was having love affair with the accused Kunal Yadav and she engaged in making consensual physical relation with him. She resided with him up to 6 16.02.2022 without raising any objection or making complaint to anyone. Thus, in absence of any cogent and clinching evidence against the appellants, they cannot be convicted for the alleged offences. Therefore, the appeals may be allowed and the appellants be acquittal from all the charges. 9 On the other hand, learned counsel for the State opposes the submissions made by the appellants and would submit that prosecution has proved its case beyond doubt. But for minor omission or contradiction, there are sufficient and overwhelming evidence against the appellants to convict them in the offence in question. The victim was minor on the date of incident which is proved from her school record. The evidence of victim cannot be doubted as she duly supported her case in her evidence. Even if no injuries were found on her body, that itself does not dilute the prosecution case. There are sufficient and overwhelming evidence available on record against the appellants. Therefore, the judgment of conviction and sentence is absolutely justified and not required to be interfered with. 10 We have heard the counsel for the parties and perused the records of the trial court. 11 The first and foremost question would be the age of the victim as to whether she was minor and less than 18 years of age on the date of incident or not. 12 The prosecution has mainly relied upon document Ex.P/15-C which is the attested true copy of school register and sought to be proved by PW-2 who is Headmaster of the school. PW-2 have stated in his evidence that police has seized the school register with respect to age 7 and date of birth the victim. After retaining its attested true copy Ex.P/15-C, the police has returned back the original register. As per school register the date of birth of victim is 05.03.2005. In cross examination, he admits that the entries in the school register has not been made by him. He also admits that there is manipulation in the father’s name of victim. He further admits that since entries have not been made by him, he could not tell as to whether her date of birth recorded in school register is correct or not. In the school register, the basis on which the date of birth of victim is recorded, has not been mentioned. 13 In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011 (2) SCC 385, which is in respect of admissibility of school records of a person, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. 14 In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 8 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- 9 "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 15 In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to 10 be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." 16 Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under : "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 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 or 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 11 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 been 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 in 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 commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. 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 determination of age. The juvenility of a person in conflict with 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 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, benefit could be given to the child or juvenile by considering the age on 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 vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 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 Vs. State of West Bengal, 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 12 indicated the hierarchy of documents that would be accepted in order of preference." 17 Reverting to the facts of the present case, the victim PW-1 have stated her date of birth as 05.03.2005. She has produced her Class Vth mark sheet which is Article-A1. In cross examination she admits that she disclosed her date of birth on the basis of her mark sheet. 18 PW-5, the mother of victim, have stated that at the time of incident her daughter was about 16-17 years. She could not remember her birth year. At the time of admission in the school, her vaccination documents were produced in the school. Her husband had gone to school at the time of admission of her daughter. 19 From the evidence produced by the prosecution with respect to age of victim it could not be established that she was minor on the date of incident. When the victim have stated that she disclosed her date of birth on the basis of school mark sheet; the entries made in the school register has not been proved by its author; her mother could not disclose her date of birth and even her vaccination certificate has not been produced by the prosecution, it cannot be said there are cogent evidence produced by the prosecution with respect to age of victim. Further, in view of the aforesaid law laid down by the Supreme Court, this court is of the opinion that prosecution could not establish that victim was minor and less than 18 years of age on the date of incident. 20 So far as the alleged offence against the accused persons are concerned, we again examine the evidence of victim. She stated in her evidence that she knew the appellant Kunal Yadav as he is the resident of same vicinity. She came to know about the accused 13 Kundan Sonwani after the incident. She is having love affair with appellant Kunal Yadav and both of them were residing in a rented house from 04.06.2021 at Kailash Puri, Buda Talab. Kunal Yadav kept her as his wife and made physical relation with her. He also used to take her to his house. After October, 2021, he left her along with his parents. After about one week, when he came back, he sent her with friend Kundan Sonwani. He gave Rs.4000/- cash and a mobile phone and assured that he will meet her regularly. The accused Kundan took her to village Kanharpuri in his Aunt’s house. After 2-4 days, he snatched her mobile phone and disclosed that he has purchased her from Kunal and made forceful sexual intercourse with her. The accused Kundan visited various places including his relatives house along with her and in the month of January-February, 2022, he took her to his elder mother’s house at village Kukri Talab. Some how she could came out from the clutches of accused Kundan and informed her mother through a mobile phone of bypasser. Thereafter her mother took her from the location disclosed by her and then lodged the report. She further states that on 16.02.2022 she lodged report against accused Kunal Yadav and thereafter she disclosed the name of Kundan Sonwani before Bal Kalyan Samiti and her statement was recorded again. In cross examination, she stated that when the police gave her a notice Ex.P/10, she disclosed that Kundan Sonwani has informed her that she has been sold by Kunal Yadav. On the instance of the police, she made another complaint Ex.P/1. Her 164 CrPC statement was recorded on 18.02.2022 and after about 8 months the City Kotwali 14 police gave a notice Ex.P/10. She further admits that when Kundan used to go for his work, she accompanied him for work of labourer. She further admits that on 15.03.2022 she along with her mother had gone to village Chhatera. She voluntarily stated that she wanted to go back because the family members of accused Kundan were raising quarrel with her. In further cross examination, she admits that she was working at Fancy Store at Gol Bazar and she alone used to go for work. Due to altercation with her parents, she used to reside in a rented house at Kailash Puri. She admits that when Kunal refused to marry her, she lodged the report. 21 From the evidence of this witness it clearly reveals that she was having love affair with the accused Kunal @ Chhagan Yadav. Both of them were residing together and accused Kunal kept her as his wife. In the written complaint Ex.P/12 also she states that up to 22.10.2021 the appellant Kunal made physical relation with her and now refused to marry her. When the victim is found to be major and as per her own evidence she was having loving affair with accused Kunal Yadav and resided with him as his wife for a considerable period, it cannot be said that the appellant Kunal Yadav committed rape upon her against her will or consent. There is no allegation that she protested at any time or raised objection in making physical relation. 22 So far as allegation against the appellant Kundan Sonwani is concerned, in the written complaint Ex.P/12 which has been lodged on 16.02.2022 there is no allegation against Kundan Sonwani that he too committed rape upon her or the appellant Kunal Yadav sold her to Kundan Sonwani for any consideration. The victim made allegation 15 against the accused Kundan Sonwani that in the month of October, 2021 the appellant Kunal Yadav sold her to accused Kundan Sonwani and when she came out from the clutches of Kundan Sonwani, she made a report on 16.02.2022 to the police, however, in her written complaint nothing has been mentioned about the act of Kundan Sonwani. Had she been sold by accused Kunal Yadav to Kundan Sonwani and Kundan Sonwani had also committed rape upon her, it must be there in her written complaint lodged on 16.02.2022 to the police. It is subsequently the allegation against Kundan Sonwani is developed by the victim that she was being sold to Kundan by the accused Kunal Yadav. 23 When the victim was asked for DNA test, she refused to give her consent for DNA test which is an additional circumstances to draw adverse inference against her that the case set up by her is not correct otherwise she would have definitely consented for DNA test. 24 A notice was given to victim on 28.10.2022 to explain that in her written complaint dated 16.02.2022 she made allegation only against the accused Kunan Yadav and charge sheet has been filed on 13.04.2022 against the said accused Kunal whereas, she made allegation against the accused Kundan Sonwani, to which she explained that due to fear she could not tell the offence committed by Kundan and even before the Bal Kalyan Samiti she has not disclosed about the same. Had she been actually suffered by the incident, she would have disclosed the incident in her written complaint which has been made on the first occasion before the police and there was no reason for not disclosing the same. When she has made allegation 16 against the accused Kunal Yadav, she would have also made allegation against the accused Kundan Sonwani. In her cross examination PW-1 have stated that she disclosed in all her statements recorded by the police that she was subjected to rape by Kundan and Kunal both but the name of Kundan has not been mentioned in her statement by the police saying that it is not under his jurisdiction and therefore they have not mentioned the name of Kundan in her statement. 25 When it is the case of victim itself that she was having love affair with the accused Kunal Yadav and both of them resided together as husband and wife and engaged in making physical relation, subsequently she alleged that the appellant Kundan Sonwani has also committed rape upon her in his house and she some how came out from his clutches and lodged the report, but in the written complaint Ex.P/12 there is no allegation against the said accused Kundan. Even there is no allegation that the accused Kunal sold her to Kundan, the allegation against Kundan Sonwani appears to be doubtful. With respect to allegation of rape against the accused Kunal Yadav, it further appears that she was a consenting party as she was having love affair with him particularly when her age has not been proved by the prosecution. 26 PW-5, the mother of victim, have stated in her evidence that the victim was residing separately from her and she was having love affair with Kunal. The victim was residing with Kunal in a rented house near Buda Talab. Both of them made physical relation repeatedly. At the time of Navratri festival Kunal went to his parents house at Gudiyari. Her 17 daughter also followed him then she was being informed that Kunal had gone to his grandparents house. Her daughter stayed there for about a week and she had some quarrel with the father of appellant Kunal and then Kunal came back and asked her to go to the house of Kundan and he shall visit her time to time. She took her articles from her rented house and had gone to the house of Kundan. Kundan too have made physical relation with her and when she asked to let her go to her parents house, Kundan disclosed that he has purchased her fron Kunal. When Kundan took her to Gudiyari to his relative’s house, some how she could free from the place when she had gone to hospital for treatment and informed her mother and called her at Kutchari Chowk and when she met her, she disclosed about the incident and they went to police station and lodged report. In cross examination, she admits that victim has disclosed that she went along with accused Kundan and stayed there at his house. Her sister in law was also residing there. She also admits that victim was having love affair with Kunal and after sometime when dispute arose between victim and Kunal, Kunal left his house. 27 PW-8, Sharda Verma, is the investigating officer, who have stated in her evidence that on the basis of written complaint Ex.P/12 made by the victim, an FIR Ex.P/2 was lodged. She proceeded for investigation and send the victim for medical examination. On 18.02.2022 her 164 CrPC statement was recorded by JMFC, Raipur and she was sent for counseling to Bal Kalyan Samiti, Raipur. She gave a notice Ex.P/10 to explain about the discrepancies of involvement of appellant Kundan Sonwani, to which the victim gave her explanation. After investigation, 18 initially the charge sheet was filed against the accused Kunal Yadav. In cross examination, she admits that on the first occasion when she filed the charge sheet, the victim has not stated anything about the accused Kundan Sonkar in her police statement and statement made before Bal Kalyan Samiti. 28 PW-9, Lalita Mehar is also one of the investigating officer who have stated that on 12.12.2022 she asked from the mother of victim for conducting DNA test, but she refused to give consent and her refusal was recorded in Ex.P/22. In cross examination, she too have admitted that in the earlier investigation there was no allegation against the accused Kundan. There is no allegation in 161 CrPC statement against the accused Kundan in the earlier investigation. 29 The victim was medically examined by PW-4 Dr. Smt. Sonam Deshmukh who did not find any external or internal injuries on the body of victim. Although the FSL report Ex.P/34 shows about presence of sperms and semen over the vaginal slide of victim as well as underwear of accused Kunal, but as has already been considered that victim resided with accused Kunal and engaged in making consensual physical relation, the presence of semen and sperms on the vaginal slide of victim does not have any specific bearing in the case. 30 The entire evidence produced by the prosecution and its cumulative effect gives rise towards conclusion that the allegation levelled by the victim against the accused persons are full of suspicion and there are material exaggeration and contradiction in the evidence of witnesses. True it is that evidence of victim is not required to be corroborated by any independent witness or by medical evidence, but before convicting 19 the accused on the basis of evidence of victim alone, she must have passed the test of sterling witness, in which she failed. 31 The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 32 So far as the offence of human trafficking and selling and buying the minor are concerned, except the self served statement of victim that the appellant Kunal Yadav sold her to appellant Kundan Sonwani, no other evidence is available on record to that effect. Even in the written complaint, there is no allegation under what consideration the accused Kunal sold her and there is no admissible or clinching evidence to hold that appellant Kunal sold the victim to appellant Kundan for any consideration. The suspicion howsoever strong cannot take place of truth, particularly in the present case when the evidence of victim itself is doubtful with respect to allegation levelled by her against the accused persons. In absence of any cogent and clinching evidence the conviction of the appellants for the offence under Sections 370,372 and 373 IPC cannot be sustained. 33 As a fallout of aforesaid consideration, by giving the benefit of doubt, the appellants are acquitted from the alleged offences. Both the 20 appeals are allowed and the impugned judgment of conviction and sentence is hereby set aside. The appellant Kunal @ Chhagan Lal Yadav is reported to be in jail since 17.02.2022 and appellant Kundan Sonwani is reported to be in jail since 29.10.2022. They shall be released forthwith, if not required in any other case. 34 Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of the sum of Rs. 25,000/- with one reliable surety in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 35 The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder