Allahabad High Court
Pradeep Kumar vs State Of U.P Thru. Prin. Secy. Home … on 21 July, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 457 of 2024 Pradeep Kumar ..Appellant(s) Versus State of U.P Thru. Prin. Secy. Home Deptt. Lko. and 3 others ..Respondent(s) Counsel for Appellant(s) : Udai Pratap Singh, Anjali Dubey, Rajiv Mishra, Soniya Mishra Soni Pathak, Sumedha Sen Counsel for Respondent(s) : G.A., Neeraj Singh, Rajat Pratap Singh Court No. - 14 HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Ms. Soniya Mishra, the learned counsel for the appellant, Sri Jayant Singh Tomar, the learned A.G.A.-I appearing on behalf of the State, Sri Neeraj Singh, the learned counsel for the complainant/prosecutrix (the opposite parties no.2 and 5) and perused the records.
2. By means of the instant appeal filed under Section 374(2) Cr.P.C. the appellant has challenged the validity of a judgment and order dated18.01.2024, passed by Sri. Vivekanand Vishwakarma, the learned Special Judge, POCSO Act/Additional Sessions Judge, Court No. 11, Unnao in Special Session Trial No. 668 of 2021, arising out of Case Crime No. 40 of 2021, under Sections 506, 376 IPC and 3/4 POCSO Act, Police Station Asiwan, District Unnao, whereby the appellant has been convictedfor the offences under Sections 3/4 (2) of the POCSO Act and 376(3), 506 IPC and he has been sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of Rs. 50,000/- for the offence under Section 3/4(2) POCSO Act. No punishment has been imposed for the offence under Section 376(3) IPC as the aforesaid offence is covered in the definition of Section 3/4(2) POCSO Act. For the offence under Section 506 IPC the appellant was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/-.
3. The aforesaid case was instituted on the basis of an FIR lodged on 10.03.2023, stating that the complainants daughter was studying in Class X in Adarsh Narvadeshwar Shiksha Sansthan Inter College, Mitthu Kheda, Police Station Asiwan, District Unnao. The appellant was a Science teacher in the said college and he also used to give tuition at the complainants home to his daughter, whose date of birth is 19.07.2006. The complainant alleged that the appellant had repetitively raped the complainants daughter during the past one year by threatening to fail her in the examination and to kill her entire family. The prosecutrix did not disclose this fact earlier due to fear and she told about the incident on 02.03.2021.
4. The medico-legal examination of the prosecutrix was conducted on 11.03.2021, in which no mark of injury was found on any part of her body, including her private parts.
5. In the statement of the prosecutrix recorded under Section 164 Cr.P.C., she stated that she was studying in High School. She lived with her parents, grand-parents and younger brother. The appellant used to teach Science in her school and he also used to give tuition at her residence for Science, Hindi and English. She stated that the appellant also used to teach her younger brother aged 10 years. In the absence of her younger brother, the appellant used to touch her or hold her hand. One day after school, the appellant took her to a jungle under the pretext of going to a coaching and he raped her in the jungle. When the prosecutrix said that she would tell it to her family members, the appellant had threatened to eliminate her father and brother. Thereafter, by using the same threat, the appellant used to repetitively take her to the jungle and commit the misdeed against her. The prosecutrix did not disclose it to any person out of fear. She stated that the appellant lastly committed the misdeed on 27th February and thereafter she told her father about the incident. She stated that the appellant had committed the misdeed on about 15-20 occasions and every time he did it in the jungle. She also stated that the appellant is a married person having three children.
6. The investigating officer had prepared a site plan, which showed the place of the incident to be an empty agricultural field of Dwarka, son of Lekhai adjacent to a paved road and not any jungle. The Investigating Officer submitted a charge-sheet dated 23.05.2021 against the appellant for the offences under Sections 376/506 I.P.C. and Section 3/4 of POCSO Act.
7. The complainant was examined as PW-1 and the prosecutrix was examined as PW-2 and both of them reiterated the FIR version. The prosecutrix proved her statement recorded under Section 164 Cr.P.C.
8. The Vice Principal, Adarsh Narvadeshwar Shiksha Sansthan Inter College was examined as PW-3. He stated that the prosecutrix got admitted to the college in Class VI on 07.04.2016 and she studied there till 31.07.2021. In the scholars register of the college as also in her transfer certificate, the date of birth of the prosecutrix was recorded as 19.07.2006.
9. The doctor who had conducted the medico-legal examination of the prosecutrix, was examined as PW-4. She stated that there was no mark of injury on the prosecutrixs body. Her hymen was old torn with irregular edges. There was no mark of injury on her private parts. She had prepared slides for DNA examination and had referred the prosecutrix to the CMO for age determination.
10. In the statement recorded under Section 313 Cr.P.C. the accused-appellant denied all the charges.
11. Pramod Kumar Verma, an Assistant Teacher of Adarsh Narvadeshwar Shiksha Sansthan Inter College, was examined as DW-1. He stated that he had been authorized by the Principal of the college to give evidence. He was a teacher in the college in the year 2021. The other teachers working in the college were Sri. Rakesh Kumar Verma, Sri. Ram Krishna Mishra, DW-1 himself, Sri. Kamal Kishore, Sri. Vikas Kumar Pal, Ms. Kanti Devi, Sri. Habib Ahmed, Ms. Rachna Devi, Sri. Mohammad Izhar, Sri. Akash Singh, Sri. Sapna Devi, Sri. Sushil Kumar and Sri. Vishwa Mohan. There was no other teacher in the college. He categorically stated that the appellant Pradeep Kumar has not been a teacher in his college either during the session 2020-2021 or before it or afterwards. He produced the original attendance register of teachers of the college for the session 2020-2021 and filed its certified copy on record of the trial court.
12. A neighbor of the complainant was examined as DW-2. He stated that there is only one house between his house and the house of the complainant. He knew the complainant, his family members (including the prosecutrix) as well as the appellant. He stated that the complainants children did not used to take tuition from the appellant. They did not take tuition anywhere. The appellant was not a teacher. He stated that the complainant has falsely implicated the appellant. The complainant had borrowed Rs.50,000/- for a surgical operation of his wife. The appellant demanded return of the amount due to which some altercation took place between them and thereafter the complainant falsely implicated the appellant. DW-2 categorically stated that the appellant had not committed any misdeed against the prosecutrix.
13. The trial court held that the date of birth of the prosecutrix mentioned in the educational records, i.e. 19.07.2006, establishes that the prosecutrix was minor on the date of the incident. The trial court also held that in the certificate issued by the Chief Medical Officer, age of the prosecutrix has been opined to be more than 19 years, but the same has not been proved whereas the educational documents of the prosecutrix have been proved. As per the trial court, where educational records are available, the same will be the primary source for ascertaining the age of the prosecutrix and other sources will be relied upon only in absence of the educational records. In this regard the trial court relied upon the judgments in the cases of Jarnail Singh Vs. State of Haryana: (2013) 7 SCC 263 and Ashwani Kumar Saxena Vs. State of MP: (2012) 9 SCC 750.
14. In Jarnail Singh vs. State of Haryana (supra), the trial Court held the accused guilty under Sections 366, 376(2)(g) and 120-B IPC. The Punjab and Haryana High Court dismissed the appeal preferred by the accused, holding that the prosecutrix was a minor. It was pointed out that the sexual organs of the prosecutrix were found to be fully developed. Her hymen was found to be ruptured. The vagina admitted two/three fingers easily. The Doctor admitted having mentioned the age of the prosecutrix as 15 years on the basis of the statement made by the prosecutrix to her and that she had not got the ossification test conducted on the prosecutrix to scientifically determine her age. The Honble Supreme Court took note of the provision contained in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules of 2007), which had been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000, sub-rules (1), (2) and (3) whereof read as under: –
12.Procedure to be followed in determination of age.(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be 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 in jail.
(3) In every case concerning a child or juvenile in conflict with 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 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;
(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 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 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 be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
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The Honble Supreme Court held that: –
23.Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a prosecutrix of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a prosecutrix 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…
15. Rule 12 of the Rules of 2007, has been replaced by Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which provides as follows: –
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 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 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 person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
16. In Ashwani Kumar Saxena v. State of M.P.: (2012) 9 SCC 750, it was held that: –
32.Age determination inquiry contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
17. In Yuvaprakash v. State of T.N.: (2024) 17 SCC 684, the relevant facts are mentioned in the following paragraph: –
21.Reverting to the facts of this case, the headmaster of M’s school, CW 1, was summoned by the court and produced a Transfer Certificate (Ext. C-1). This witness produced a Transfer Certificate Register containing M’s name. He deposed that she had studied in the school for one year i.e. 2009-2010 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW 2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons served by the court and deposed that M had joined her school with effect from 3-4-2002 and that her date of birth was recorded as 11-7-1997. She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue i.e. the date of birth, Thiru Prakasam, DW 3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.
18. In the aforesaid factual background, the Honble Supreme Court held in Yuvaprakash v. State of T.N. (supra) that: –
22.It is clear from the above narrative that none of the documents produced during the trial answered the description of the date of birth certificate from the school or the matriculation or equivalent certificate from the examination board concerned or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the prosecutrixs age was below 18 years as per Section 94(2)(iii) of the JJ Act. …
23.As held earlier, the documents produced i.e. a transfer certificate and extracts of the admission register, are not what Section 94(2)(i) mandates; nor are they in accord with Section 94(2)(ii) because DW 1 clearly deposed that there were no records relating to the birth of the prosecutrix, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medicalossification test, based on several x-rays of the prosecutrix, and on the basis of which PW 9 made her statement…
(emphasis added)
19. The trial court has placed reliance upon the scholars register and the transfer certificate issued by the school in which the prosecutrix had got admitted in Class VI on 07.04.2016 and where she had studied till 31.07.2021. The trial Court held that in presence of these educational certificates, medical evidence will not be seen. The scholars register of school where the prosecutrix had got admitted in Class VI and the transfer certificate are neither the matriculation or equivalent certificates, mentioned in Rule 12 (3) (a) (i) nor the date of birth certificate from the school first attended as mentioned in Rule 12 (3) (a) (ii) and these documents are not mentioned in any of the clauses of Rule 12 (3) (a) of the Rules of 2007 or in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. In absence of any document mentioned in Rule 12 (3) (a) (i), (ii) and (iii) or Section 94 of the Act of 2015, the Court has to rely upon the medical opinion, as per Rule 12 (3) (b) of the Rules of 2000 or Section 94 of the Act of 2015.
20. The medical evidence mentioned in Rule 12 (3) (b) of the Rules of 2000 established that the prosecutrix was aged more than 19 years on the date of the incident. However, the trial Court has discarded the medical evidence mentioned in Rule 12 (3) (b) and has relied upon the educational documents which do not fall within rule 12 (3) (a), which renders its finding regarding age of the prosecutrix unsustainable in law.
21. The trial Court has given one more reason to discard the medical opinion favouring the accused – appellant, that it had not been proved by examining any witness. The trial Court has failed to understand that the medical opinion was produced by the prosecution, the accused was not required to prove this medical evidence and he did not deny it. In this regard the relevant provision is contained in Section 294 Cr.P.C., which reads as follows: –
294. No formal proof of certain documents. -(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.
22. As the medical opinion regarding age of the prosecutrix was filed by the prosecution and the accused did not dispute it, the evidence had to be read in evidence in trial without any further formal proof. Moreover, it is elementary that when a prosecution evidence favours the accused, the accused is not required to prove the same by examining any witness. The trial Court has discarded the medical evidence adduced by the prosecution for the reason that the accused did not prove it, which reason is patently erroneous and is unsustainable in law.
23. The trial Court has placed reliance on a judgment rendered by a single Judge of Orissa High Court in Gobardhan Gadaba v. State of Odisha: 2022 SCC OnLine Ori 4270, in which it was held that there is no law which mandates that in each and every case two years have to be added to the outer age limit determined by the ossification test. Firstly, this observation was made keeping in view the peculiar facts and circumstances of that case, and secondly, the Orissa High Court failed to take into consideration the law laid down by the Honble Supreme Court in the cases of Jaya Mala v. Govt. of J & K: (1982) 2 SCC 538, Jyoti Prakash Rai v. State of Bihar: (2008) 15 SCC 223 and Rajak Mohammad v. State of H.P.: (2018) 9 SCC 248.
24. In Jaya Mala v. Govt. of J & K: (1982) 2 SCC 538, the Honble Supreme Court held that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.
25. In Jyoti Prakash Rai v. State of Bihar: (2008) 15 SCC 223, it was reiterated that the Honble Supreme Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side.
26. In Rajak Mohammad v. State of H.P.: (2018) 9 SCC 248, the Honble Supreme Court has held that: –
9.While it is correct that the age determined on the basis of a radiological examination may not be 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 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.
(emphasis added)
27. The learned trial Court has committed a patent error of law in relying upon a non-binding precedent of Orissa High Court while ignoring the law laid down by the Honble Supreme Court in the cases of Jaya Mala v. Govt. of J & K: (1982) 2 SCC 538, Jyoti Prakash Rai v. State of Bihar: (2008) 15 SCC 223 and Rajak Mohammad v. State of H.P.: (2018) 9 SCC 248.
28. Applying the principles mentioned in the aforesaid cases to the facts of the present case, the prosecution has failed to establish that the prosecutrix was minor on the date of the alleged incident. Therefore, the trial Court has erred in convicting the appellant for the offence under Sections 3/4 (2) of the POCSO Act. or Section 376 (3) of the IPC.
29. Now I proceed to examine whether the appellant could be convicted for the offence under Section 376 IPC.
30. The father of the prosecutrix had lodged the FIR alleging that his daughter was studying in Class X in Adarsh Narvadeshwar Shiksha Sansthan Inter College and the appellant was a Science teacher in the said college and he also used to give tuition to the prosecutrix at her residence. In the statement of the prosecutrix recorded under Section 164 Cr.P.C., she stated that the appellant used to teach Science in her school and he also used to give tuition for Science, Hindi and English at her residence. She stated that the appellant also used to teach her younger brother aged 10 years.
31. The Vice Principal, Adarsh Narvadeshwar Shiksha Sansthan Inter College was examined as PW-3. He stated that the prosecutrix studied in the college since 07.04.2016 till 31.07.2021, but he did not state that the appellant used to teach in the college.
32. The Investigating Officer Sub-Inspector Rambali was examined as PW-6. During cross-examination he stated that he had gone to Adarsh Narvedeshwar Shiksha Sansthan Inter College, Miyanganj to verify as to the period during which the appellant had worked as a teacher and he came to know that the appellant has not worked as a teacher in the said college.
33. Pramod Kumar Verma, an Assistant Teacher of Adarsh Narvadeshwar Shiksha Sansthan Inter College was examined as DW-1. He had produced the original attendance register of teachers of the college for the session 2020-2021 and had filed its certified copy on record of the trial court, which showed that the appellant was not a teacher in the college during the relevant period. DW-1 categorically stated that the appellant Pradeep Kumar has not been a teacher in his college either during the session 2020-2021 or before it or afterwards.
34. A neighbor of the complainant was examined as DW-2. He stated that there is only one house between his house and the house of the complainant. He knew the complainant, his family members (including the prosecutrix) as well as the appellant. He stated that the complainants children did not use to take tuition from the appellant. They did not take tuition anywhere. The appellant was not a teacher. He stated that the complainant had borrowed Rs.50,000/- for a surgical operation of his wife. The appellant demanded return of the amount due to which some altercation took place between them and thereafter the complainant lodged the FIR falsely implicating the appellant. DW-2 categorically stated that the appellant had not committed any misdeed against the prosecutrix.
35. A bare perusal of the aforesaid evidence available on record clearly proves that although the complainant and the prosecutrix alleged that the appellant was a teacher in the college in which the prosecutrix studied and that the appellant used to give tuition to her, the prosecution failed to prove this allegation. On the contrary, the defense witnesses proved that the appellant was not a teacher in the college in which the prosecutrix studied and that they also proved that the appellant did not give tuition to her.
36. The trial Court has disbelieved the testimony of the defence witnesses on the ground that the attendance register produced by DW-1 did not bear the signatures of any authorities of the college. The trial Court has not mentioned as to whether the genuineness of the register had been denied by the prosecution as per the provisions of Section 294 Cr.P.C. In absence of any denial by the prosecution, the register produced by DW-1 could not be disbelieved.
37. Secondly, while holding that the prosecution has proved that the appellant was a teacher in the college in which the victim used to study, the trial Court has ignored the testimony of the investigating officer Sub-Inspector Ram Bali (PW-6) who stated that he had gone to Adarsh Narvedeshwar Shiksha Sansthan Inter College, Miyanganj to verify as to the period during which the appellant had worked as a teacher and he came to know that the appellant has not worked as a teacher in the said college. This evidence clearly disproved the case setup by the prosecution, but it has been ignored by the trial court, which renders its finding regarding the appellant having been a teacher in the aforesaid college as perverse.
38. The trial Court has also relied upon the statement of the earlier Investigating Officer Sub-Inspector Rajbahadur, who was examined as PW-5 and who stated that during investigation, he had recorded the statement of Sri. Rakesh Kumar Verma, the Head-master of the college, who had stated that the appellant used to teach in the college. The trial Court omitted to notice that Sri. Rakesh Kumar Verma, the Head-master of the college was not examined as a prosecution witness to prove that the appellant was a teacher in his college.
39. The trial Court also held that no question was put to the PW-3 in his cross-examination as to whether the appellant was a teacher in the college or not. The trial Court has acted under a basic misapprehension of the legal position that it is the prosecution which is required to prove its case beyond reasonable doubt and the accused is not required to prove its defence beyond reasonable doubt, he is merely required to create a doubt in the prosecution case. It was for the prosecution to prove that the appellant was a teacher in the college and if PW-3 did not say so, it goes against the prosecution and no adverse inference can be drawn against the accused if he did not put a question on this point during cross-examination of PW-3.
40. In Anand Ramchandra Chougule v. Sidarai Laxman Chougala:(2019) 8 SCC 50, the Honble Supreme Court held that: –
10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.
41. InVaibhavv.State of Maharashtra:(2025) 8 SCC 315, the Honble Supreme Court held that: –
29. In criminal jurisprudence, it is a time-tested proposition that the primary burden falls upon the shoulders of the prosecution and it is only if the prosecution succeeds in discharging its burden beyond reasonable doubt that the burden shifts upon the accused to explain the evidence against him or to present a defence. In the present case, the version of the prosecution suffers from inherent inconsistencies and doubts, as discussed above, and in such a scenario, the inability of the appellant to explain certain circumstances could not be made the basis to relieve the prosecution from discharging its primary burden.
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31. In law, there is a significant difference in the evidentiary burden to be discharged by the prosecution and the accused. Whereas, the former is expected to discharge its burden beyond reasonable doubt, the latter is only required to prove a defence on the anvil of preponderance of probabilities. If the accused leads defence evidence in the course of a criminal trial, the same ought to be tested as probable or improbable in the facts and circumstances of the case.
42. In Rajuv.State of M.P.: (2008) 15 SCC 133, the Honble Supreme Court cautioned that: –
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the prosecutrix but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
12. Reference has been made inGurmit Singh case[State of Punjabv.Gurmit Singh, (1996) 2 SCC 384] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.
(emphasis supplied)
43. It is true that a conviction can be based on a solitary testimony of a victim, but it can only be done if her testimony inspires confidence and there are no major contradictions in it. In State of H.P. v. Asha Ram: (2005) 13 SCC 766, while upholding conviction of a father accused of raping his own daughter, the Honble Supreme Court held that: –
5…. It is now a well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.
(emphasis added)
44. After taking into consideration the aforesaid principles laid down in State of H.P. v. Asha Ram (supra), in Rai Sandeep v. State (NCT of Delhi): (2012) 8 SCC 21, the Honble Supreme Court held that: –
22.In our considered opinion, the sterling witness should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a sterling witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
(emphasis added)
45. When we examine the prosecution material in light of the above quoted principles laid down by the Honble Supreme Court, it appears that the FIR was lodged on 10.03.2021, stating that the prosecutrix disclosed on 02.03.2021 that the appellant had been raping her during the past one year. There was no explanation for the delay of 8 days in lodging the FIR. In the statement of the prosecutrix recorded under Section 164 Cr.P.C., she stated that the appellant had taken her to a jungle on an undisclosed day under the pretext of going to a coaching and he raped her in the jungle. Thereafter the appellant repetitively took her to the jungle and committed the misdeed against her. She stated that the appellant had committed the misdeed on about 15-20 occasions and every time he did it in the jungle. However, during her cross examination, she stated that the appellant had raped her for the first time on 27.02.2021. If the appellant raped the victim for the first time on 27.02.2021, it is impossible that by the time she told it to her father on 02.03.2021, the appellant had raped her 15-20 times by taking her to a jungle.
46. In the site plan prepared by the investigating officer, the place of the incident has been shown to be an empty agricultural field of Dwarka, son of Lekhai, which was adjacent to a paved road and the victim did not show any jungle to the investigating officer. There is no evidence of the existence of any jungle near the village of the prosecutrix where the misdeed was committed. This also disproves the prosecution case.
47. The material discrepancies in the statement of the prosecutrix highlighted in the preceding paragraphs clearly establish that the testimony of the prosecutrix is not reliable and it cannot form the basis of conviction of the accused-appellant.
48. The trial Court has held that the statement of the prosecutrix is corroborated by the findings of forensic report that the male specific allele was found in her vaginal smear. The medico-legal examination of the prosecutrix was conducted on 11.03.2021. PW-4 (the doctor who had conducted the medico legal examination of the prosecutrix) stated that there was no mark of injury on her body, including her private parts. Her hymen was old torn with irregular edges. During cross-examination, PW-4 stated that there was no mark of sexual assault on any part of the body of the prosecutrix and the hymen could be torn even during sports activities.
49. PW-4 had prepared slides for DNA examination and had referred the prosecutrix to the CMO for age determination. Although report of forensic science laboratory mentions presence of the male specific allele in the prosecutrixs vaginal swab, yet even when samples were drawn for DNA examination, the prosecution has not produced the DNA profiling report to establish that the male specific allele found in the vaginal swab of the prosecutrix related to the appellant. The investigating officer (PW-5) stated in his cross-examination that he had not collected the DNA examination report of the prosecutrix and the appellant.
50. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, public and private business in relation to the facts of the peculiar case. Illustration (g) appended to Section 114 provides that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.Non-production of DNA profiling report, gives rise to a presumption that had the aforesaid report been produced, the report would have been detrimental to the prosecution case.
51. The prosecutrix stated that her younger brother also studied in the same college, both of them used to go the college together and they used to take tuition together. In these circumstances, the younger brother of the prosecutrix was the best and the sole eye-witness of the conduct of the appellant while teaching the prosecutrix and he would also have witnessed the appellant taking away the prosecutrix with him from the college or home. However, the prosecution did not examine the brother of the prosecutrix as a witness.
52. InRitesh Chakarvartiv.State of M.P.,(2006) 12 SCC 321, the Supreme Court held that an adverse inference can be drawn for non-examination of material witnesses.
53. InDavinder Singhv.State of Punjab,(2023) 19 SCC 229, the Supreme Court referred to an earlier precedent on this point in the following passage: –
9. On the issue of non-examination of material witness, we wish to place reliance on the decision of this Court inTakhaji Hirajiv.Thakore Kubersing Chamansing[(2001) 6 SCC 145]:
19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself. whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.
(emphasis added)
54. As has been noted above, the testimony of the prosecutrix suffers from serious contradictions and discrepancies. Her allegations are not supported by the statement of the doctor (PW-4) and the investigating officer (PW-6) and she is not a witness of sterling quality. In these circumstances, non-examination of the brother of the prosecutrix would also give rise to a presumption under Section 114, illustration (g) of the Evidence Act that had the brother been produced as a prosecution witness and put to cross-examination by the defence, his testimony would be unfavorable to the prosecution.
55. In view of the foregoing discussion, I am of the considered view that the prosecution has miserably failed to prove the charge that the appellant had raped the prosecutrix and that too, repetitively. The finding of commission of rape recorded by the trial court ignoring the aforesaid material discrepancies in the prosecution evidence stands vitiated.
56. Regarding the conviction and sentence for criminal intimidation under Section 506 IPC, it is to be noted that the offence of criminal intimidation is defined in Section 503 IPC as follows: –
503. Criminal intimidation – Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.
Explanation.A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
57. Besides the testimony of the prosecutrix that the appellant used to repetitively rape her by threatening to kill her father and brother, there is no evidence to prove this charge. The nature of this charge is such that it is a derivative of the main charge of rape, which has been disproved. Therefore, the appellant cannot be convicted and sentenced for the offence of criminal intimidation relying upon the prosecutrixs sole testimony, which suffers from serious discrepancies and which has been disbelieved while examining the validity of the charge of commission of rape.
58. In view of the foregoing discussion, I am of the considered view that the prosecution has failed to prove all the charges against the appellant. The appellant-accused had led ample evidence to disprove the charges, but the trial Court has discarded the testimony of the defense witnesses without any justified reason and has convicted and sentenced the appellant without considering the aforesaid aspects of the matter.
59. Accordingly, the criminal appeal is allowed. The impugned judgment and order dated18.01.2024, passed by the learned Special Judge, POCSO Act/Additional Sessions Judge, Court No. 11, Unnao in Special Session Trial No. 668 of 2021, arising out of Case Crime No. 40 of 2021, under Sections 506, 376 IPC and 3/4 POCSO Act, Police Station Asiwan, District Unnao, whereby the appellant has been convictedfor the offences under Sections 3/4 (2) of the POCSO Act and 376(3), 506 IPC and sentenced as aforesaid is hereby set aside and the appellant is acquitted of the charges levelled against him.
60. The appellant is in jail. He shall be set free upon furnishing a personal bond as required by Section 437-A Cr.P.C., undertaking to appear before the Honble Supreme Court in case any appeal is filed against this order and the Honble Supreme Court issues notice of the appeal to the appellant. The bond shall remain in force for a period of six months from today.
61. I put on record my appreciation for the able assistance provided by my Research Associate Ms. Divyanshi Srivastava in providing the precedents referred to in this judgment.
(Subhash Vidyarthi,J.)
July 21, 2026
Ram.
Whether the order is speaking Yes
Whether the order is reportable – Yes
(Subhash Vidyarthi,J.)
