Chattisgarh High Court
Vivek Kurre @ Poklin vs State Of Chhattisgarh on 10 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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2026:CGHC:16596-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 112 of 2024
1 - Vivek Kurre @ Poklin S/o Uttam Kurre, Aged About 19 Years And 6
Months, R/o Dharashiv, Chowki Lawan, P.S. Kasdol, District :
Balodabazar-Bhathapara, Chhattisgarh
... Appellant
versus
1 - State of Chhattisgarh Through The Station House Officer, Police
Station Kasdol, District : Balodabazar-Bhathapara, Chhattisgarh
... Respondent
(Cause-title taken from Case Information System)
For Appellant : Mr. Satya Prakash Verma, Advocate.
For State : Mr. N.K. Jaiswal, Deputy Govt. Advocate.
Hon’ble Shri Ramesh Sinha, CJ &
Hon’ble Shri Ravindra Kumar Agrawal, J
Judgment on Board
10-04-2026
Per Ramesh Sinha, Chief Justice
1. Learned counsel for the State submits that the notice issued to
victim has been served, however none appears to submit/object the
appeal/application for suspension of sentence and grant of bail. Though
the matter was listed for orders on suspension of sentence and grant of
bail, however, with the consent of parties, the matter is heard finally.
Digitally signed by
MOHAMMED
AADIL KHAN
Date: 2026.04.14
11:40:18 +0530
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2. The present appeal under Section 374(2) of the Cr.P.C. has been
filed by the appellant against the judgment of conviction and order of
sentence dated 05.01.2024 passed by the learned Additional District
and Sessions Judge, FTSC (POCSO Act), Balodabazar in Special Case
(POCSO) No.75/2022, whereby the appellant has been convicted and
sentenced in the following manner with a direction to run all the jail
sentences concurrently:-
Conviction Sentence
U/s 363 of the IPC R.I. for 5 years and fine of Rs. 1000/-, in
default of payment of fine 3 months
additional R.I.
U/s 366 of the IPC R.I. for 10 years and fine of Rs. 3000/-,
in default of payment of fine 3 months
additional R.I.
U/s 6 of Protection of Children Life Imprisonment (till natural life) and
from Sexual Offences Act, 2012 fine of Rs.5000/-, in default of payment
(in short ‘POCSO Act‘) of fine 3 months additional R.I.
The appellant has also been convicted by the impugned judgment
for the offence 376(3) of the IPC, however, since he has been convicted
for the offence under Section 6 of POCSO Act and for the offence under
Section 6 of POCSO Act he has been sentenced Life Imprisonment (till
natural life) and fine of Rs.5000/-, in default of payment of fine 3 months
additional R.I., no separate sentence has been awarded for his
conviction under Section 376(3) of the IPC.
3. The case of the prosecution is that, on 29-06-2022 the maternal
grand-father of the victim PW-3 lodged a missing report to police that
his grand-daughter is missing since 25-06-2022 and her whereabouts
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could not be traced out despite her search in nearby places and
relatives house. Police registered FIR Ex.-P/12 against unknown person
for the offence under Section 363 of the IPC and started investigation.
During investigation the victim was recovered on 03-08-2022 from the
possession of the appellant who were found at Village Ankhi, District
Bharuch, Gujarat and the recovery panchnama Ex.-P/8 and P/9 was
prepared in presence of the witnesses. The victim was taken to
Balodabazar and kept at Child Welfare Committee Balodabazar. The
victim was sent for her medical examination to Community Health
Center Lawan where PW-7 Doctor Shriya Gidoda examined the victim
who gave her report Ex.-P/2. While medically examining the victim the
doctor has not found any external injuries on her body and opined that
there is exact opinion regarding recent sexual intercourse. Two slides of
her vaginal slides were prepared, sealed and handed over to police for
its chemical examination. The underwear of the victim has been seized
vide seizure memo Ex.-P/3. Spot map Ex.-P/13 was prepared by police
and Ex.-P/17 was prepared by the Patwari. Statement under Section
164 of the Cr.P.C. of the victim Ex.-P/11 was recorded. With respect to
age and date of birth of the victim police seized school register vide
seizure memo Ex.-P/19 and after retaining its attested true copy
Ex.-P/20C the original register was returned back to the school.
According to the school register, the date of birth of the victim is 16-09-
2009. The progress report card of the primary school of the victim has
also been seized by police which is Ex.-P/22 and P/23. The appellant
was arrested on 05-08-2022 and he too was sent for his medical
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examination to Community Health Center, Lawan where he was
medically examined by Doctor Guru Govind Verma PW-14. While
medically examining the appellant the doctor has not noticed any injury
on his body and gave his report Ex.-P/25 opining that at the time of
examination he could not find anything upon which he can say that he
cannot perform sexual intercourse. The underwear of the appellant was
also seized and sent for its query report to the doctor who forwarded it
for chemical examination. The motorcycle has been seized vide seizure
memo Ex.-P/27. The memorandum statement of the appellant Ex.-P/15
was also recorded. The vaginal slide of the victim, her underwear and
underwear of the appellant were sent for its chemical examination to
State FSL, Raipur from where report Ex.-P/37 was received. According
to the FSL report, no semen or sperm were found on the sent articles.
Statement of witnesses under Section 161 of Cr.P.C. were recorded and
after completion of usual investigation, charge-sheet was filed against
the appellant before the learned trial Court for the offence under Section
363, 366A, 376 IPC and Section 4 and 6 of the POCSO Act.
4. The learned trial court framed charge against the appellant for the
offence under Section 363, 366, 376 IPC and Section 6 of the POCSO.
The appellant denied the charge and claimed trial.
5. In order to prove the charge against the appellant, the prosecution
has examined as many as 15 witnesses. The statement of the appellant
under Section 313 of CrPC has also been recorded in which he denied
the circumstances that appears against him, pleaded innocence and
has submitted that he has been falsely implicated in the offence.
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6. After appreciation of the oral as well as the documentary evidence
led by the prosecution, the trial court has convicted and sentenced the
appellant as mentioned in the earlier part of this judgment. Hence this
appeal.
7. Learned counsel for the appellant would submit that the
prosecution has failed to prove its case beyond reasonable doubt.
There are material omissions and contradictions in the evidence of
prosecution witnesses which cannot be made basis to convict the
appellant for the offence in question. The prosecution could not brought
on record the cogent material and evidence to prove the age of the
victim that she was minor and less than 18 years of age on the date of
the incident. The school register produced by the prosecution has not
been proved in accordance with law as the author of the school register
has not been examined and the basis on which the entries have been
made in the school register have also not been proved. He would
further submit that the victim was a major girl having love affair with the
appellant and she on her own will eloped with him and both of them
were residing at Gujarat. She on her own will engaged in making
physical relation with the appellant. There is no allegation that while
traveling from her village upto Gujarat she made any complaint to
anyone to the persons on the way, even while residing at Gujarat she
has not made any protest or objection to any person in the vicinity
where she was residing. Her conduct itself shows that she was a
consenting party in eloping with the appellant and engaged in making
consensual physical relation. Therefore, he is entitled for acquittal.
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8. On the other hand, learned counsel for the state opposes the
arguments advanced by the learned counsel for the appellant and
submits the the evidence of prosecution witnesses are fully reliable. The
age of victim has been proved from school record which is proved by
PW-10, who is Head Master of the school. The victim was minor on the
date of the incident, and her consent is immaterial. The evidence of the
victim need not be required for any corroboration and on the sole
testimony of the victim, the conviction can be made. Further, from the
evidence of witnesses, the guilt of appellant has duly been proved.
Therefore, the impugned judgment of conviction and sentence needs no
interference.
9. We have heard learned counsel for the parties and perused the
records carefully.
10. The first and foremost question arises for consideration would be
the age of victim as to whether she was minor on the date of incident
and less than 18 years of age or not?
11. The prosecution has mainly relied upon school register, Ex.-P/20C
which is sought to be proved by PW-10 who is the Head Master. He
stated in his evidence that he is the Head Master of the school since
2010-11. The police has seized the school register with respect to the
age and date of birth of the victim and after retaining its attested true
copy the original register was returned back to him. The said school
register has been seized vide seizure memo Ex.-P/19. As per the school
register, the date of birth of the victim is recorded as 16-09-2009. He
also gave the progress report card of the victim which is Ex.-P/22 and
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its attested true copy is Ex.-P/23. In cross examination, he admitted that
in the school register Ex.-P/20, there is no mention as to who had taken
the victim to the school for her admission. There is no mention in the
school register Ex.-P/20 that the date of birth of the victim is recorded
on the basis of her birth certificate. He voluntarily stated that before
admission they had taken birth certificate or adhar card of the children.
He admitted that they have not obtained Halafnama of the person who
brought the victim to the school for her admission. He further admitted
that there is no signature of her parents in the school register.
From the evidence of this witness though it appears that his
signature is there in the school register Ex.-P/20C, but there is no
evidence with respect to the document on the basis of which the date of
birth of the victim is recorded in the school register.
12. Admissibility and the evidentiary value of the school register has
been considered by the Hon’ble Supreme Court in the case of Alamelu
and Another Vs. State, represented by Inspector of Police, reported
in 2011 (2) SCC 385, wherein the Supreme Court has observed as
under in paragraphs 40, and 48 that :
“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 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.
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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. [(2006) 5 SCC 584] held as follows:-
“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 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.”
13. 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
9to seek evidence for the purpose of recording a finding stating the age
of the person as nearly as may be.
XXXX XXXX XXX
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 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.
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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.”
14. Further, in case of P. Yuvaprakash Vs. State represented by
Inspector of Police, reported in 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
11present 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 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. [2022 (8) SCC 602] 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.”
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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 [2019] 9 SCR 735]
that:
“Clause (i) of Section 94 (2) places the date of birth certificate
from the school and the matriculation or equivalent certificate
from the concerned examination board in the same category
(namely (i) above). In the absence thereof category (ii) provides
for obtaining the birth certificate of the corporation, municipal
authority or panchayat. It is only in the absence of (i) and (ii)
that age determination by means of medical analysis is
provided. Section 94(2)(a)(i) indicates a significant change over
the provisions which were contained in Rule 12(3)(a) of the
Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)
(i) the matriculation or equivalent certificate was given
precedence and it was only in the event of the certificate not
being available that the date of birth certificate from the school
first attended, could be obtained. In Section 94(2)(i) both the
date of birth certificate from the school as well as the
matriculation or equivalent certificate are placed in the same
category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal
[(2012) 9 SCR 224], this court, through a three-judge bench, held that the
burden of proving that someone is a juvenile (or below the prescribed
age) is upon the person claiming it. Further, in that decision, the court
indicated the hierarchy of documents that would be accepted in order of
preference.”
15. Reverting to the facts of the present case, the victim PW-2 though
has not stated any date of her birth, but she has stated that she was
about 15 years of age at the time of the incident. In cross-examination
she admitted in para 6 that she is having two separate adhar cards and
in both the adhar cards her date of birth are different. In one adhar card
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year of her birth is 2001 and in another adhar card year of her birth is
2006.
16. PW-1, the mother of the victim has stated in her evidence that she
did not know the date of birth of her daughter. Though the defence tried
to abstract the age by putting suggestion about age of the other children
and age gap between her children, but that may not have any
determinative evidence as it is only the suggestion.
17. PW-3 is maternal grand-father of the victim who has also not
stated anything about her date of birth. Even he has not stated that the
victim was minor on the date of incident., but has stated that the age of
the victim is about 16 years.
18. PW-4 is father of the victim. He too has not disclosed her date of
birth. In the leading question asked by the prosecution he admitted that
he disclosed before the police that the date of birth of the victim is 16-
09-2009 and she was minor at the the time of commission of the
offence. In cross-examination he denied that his elder son is aged about
20-21 years and his daughter of second number is aged about 16 years
and his younger daughter is aged about 14 years. He further stated that
there is age gap of 2-3 years in each children. He too has admitted that
the victim is having two separate adhar cards, but he denied that in both
the adhar cards her date of birth is different. The victim was got
admitted in the school by her maternal uncle, but he did not know as to
what date of birth was recorded by him. He also admitted that birth of
the victim was not got recorded in the Kotwari register.
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19. From the aforesaid evidence the prosecution could not be able to
establish the date of birth of the victim or her age. There is no birth
certificate or any ossification test report of the victim. The school
register has not been proved in accordance with law. The parents of the
victim could not establish her date of birth and further that the victim and
father admitted that she is having two different adhar cards and as per
the evidence of the victim, in both the adhar cards there was different
date of birth. Though both the adhar cards have not been filed by the
prosecution, but admission by the victim herself is sufficient to raise
suspicion over the correct date of birth.
20. In view of the evidence produced by the prosecution and the
aforesaid law laid down by the Hon’ble Supreme Court, we are of the
opinion that the prosecution could not establish that the victim was
minor on the date of incident and less than 18 years of age, yet the
learned trial Court has held her minor.
21. So far as offence of kidnapping and rape are concerned, we again
examine the evidence produced by the prosecution.
22. PW-2 is victim who stated in her evidence that two month back
she had gone to Gujarat along with the appellant. When she was at
Puna, she met with the appellant through Instagram. When she came
back to her house on 12th June, she made a telephonic call to the
appellant and she called him to take her back. The appellant came to
the village on 25th June and she accompanied him and had gone by his
motorcycle. He took her to Village Boda and kept in the in-laws house of
his friend. On the next day he took her to Durg by bus and kept her at
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his maternal uncle’s house. In the second next day he took her to
Gujarat. When she stayed at maternal uncle’s house, the appellant
made physical relation with her. She further stated that the appellant
performed marriage with her in a temple at Gujarat and thereafter kept
her as his wife and made physical relation with her. On 2 nd of August
police came there and took her back. In cross-examination she admitted
that when she had gone to Puna along with her parents to earn their
livelihood the appellant was also came there to earn his livelihood.
During that period she acquainted with the appellant and he used to
come to her house. She was having love affair with the appellant and
had talk with each other through their mobile phone. When summer
vacation were over her father left her to Village Kohroud, but she
connected with the appellant through mobile phone. She admitted that
the appellant performed marriage with her in a temple at Gujarat. She
also admitted that from Gujarat she made a telephonic call to her
mother and asked her not to search her and she is living happily and
also asked her not to lodge any report.
From the evidence of the victim it clearly established that she on
her own will eloped with the appellant and both of them had gone to
Gujarat where the appellant performed marriage with her in a temple
and started residing as husband and wife and engaged in making
consensual physical relation. It is not that the appellant kidnapped the
victim, but the victim herself called him and accompanied him upto
Gujarat. There is no evidence that she made any protest or any
objection when she was being taken by the appellant upto Gujarat.
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23. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC
942, the Hon’ble Supreme Court has held in Para 9 and Para 10 of its
judgment that:-
“9. It must, however, be borne in mind that there is a
distinction between “taking” and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves from
laying down that in no conceivable circumstance can the
two be regarded as meaning the same thing for the
purposes of of the Indian Penal Code. We would limit
ourselves to a case like the present where the minor
alleged to have been taken by the accused person left her
father’s protection knowing and having capacity to know the
full import of what she was doing voluntarily joins the
accused person. In such a case we do not think that the
accused can be said to have taken her away from the
keeping of her lawful guardian. Something more has to be
shown in a case of this kind and that is some kind of
inducement held out by the accused person or an active
participation by him in the formation of the intention of the
minor to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father’s protection no active part was played by
the accused, he had at some earlier stage solicited or
persuaded the minor to do so. In our, opinion if evidence to
establish one of those things is lacking it would not be
legitimate to infer that the accused is guilty of taking the
minor out of the keeping of the lawful guardian merely
because after she has actually left her guardian’s house or
a house where her guardian had kept her, joined the
accused and the accused helped her in her design not to
return to her guardian’s house by taking her along with him
from place to place. No doubt, the part played by the
accused could be regarded as facilitating the fulfillment of
the intention of the girl. That part, in our opinion, falls short
of an inducement to the minor to slip out of the keeping of
her lawful guardian and is, therefore, not tantamount to
“taking”.
24. Recently, the Hon’ble Supreme Court in case of Tilku @ Tilak
Singh Vs. State of Uttarakhand has also relied upon the aforesaid
judgment of S. Varadarajan (supra) in its judgment dated 06.02.2025
passed in Criminal Appeal No.183 of 2014.
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25. From the evidence of the victim it also reflects that her evidence
does not inspire confidence of the Court that the appellant kidnapped
her and committed rape upon her. The quality of her evidence is not
sufficient to put up under the definition of sterling witness as has been
held by the Hon’ble Supreme Court in the case of Santosh Prasad @
Santosh Kumar v. State of Bihar, 2020 (3) SCC 443, wherein para
5.4.2 it has been held that:
“5.4.2 In the case of Rai Sandeep alias Deepu (supra), this
Court had an occasion to consider who can be said to be a
“sterling witness”. In paragraph 22, it is bserved and held as
under:
“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
18the 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.”
26. In Dola @ Dolagobinda Pradhan & Another Vs. State of
Odisha, 2018(18)SCC 695, in paragraph 9 it was observed by Hon’ble
Supreme Court as under :
“9. However, as is also evident from the observations above, such
reliance may be placed only if the testimony of the prosecutrix
appears to be worthy of credence. In this regard, it is also relevant to
19note the following observations of this Court in Raju v. State of M.PA,
which read thus: (SCC p. 141. paras 10-11)
“10. The aforesaid judgments lay down the basic principle that
ordinarily the evidence of a prosecutrix should not be
suspected and should be believed, more so as her statement
has to be evaluated on a par with that of an injured witness
and if the evidence is reliable, no corroboration is necessary.
Undoubtedly, the aforesaid observations must carry the
greatest weight and we respectfully agree with them, but at
the same time they cannot be universally and mechanically
applied to the facts of every case of sexual assault which
comes before the court.
11. It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim 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.”
27. In the further evidence laid by the prosecution, PW-1 mother of
the victim has stated that the victim was residing with her parents in the
village because she, her husband and her son usually gone to earn
20
their livelihood at Puna. She was informed by her father that the victim
is missing. Since there was a call in their mobile phone earlier they
suspected and they started searching the victim. They came to know
from the villagers that the appellant was also present in the village 2-3
days back. Thereafter, they lodged the report and the victim was
recovered after 20-25 days from Gujarat from the possession of the
appellant. When the victim came back she informed the incident that
she was kidnapped and subjected to rape by the appellant. In cross-
examination she admitted that when they had gone to Puna to earn
their livelihood the appellant was also there to earn his livelihood. She
further admitted that her Village Kohroud and village of appellant
Dharashiv is situated nearby. She denied the suggestion that the
appellant and her daughter were known to each other. She also denied
any love affair between them. She admitted that her daughter had gone
to Gujarat along with the appellant. She further admitted that when the
victim left her house, she made a telephonic call to her and asked to
withdraw the police complaint.
The evidence of her mother is contrary to the evidence of the
victim. When her mother denied about the love affair and relation with
the appellant, whereas, the victim admitted that she was having love
affair with the appellant and she eloped with the appellant and both of
them performed marriage and resided together as husband and wife at
Gujarat.
21
28. PW-3, maternal grand-father of the victim has not stated any
specific about the offence of kidnapping and rape by the appellant.
29. PW-4, the father of the victim has stated that at the time of
incident he had gone to Pune to earn his livelihood and his father-in-law
informed about the incident about missing of the victim. When she could
not be found his father-in-law lodged missing report. The villagers raised
suspicion upon the appellant and then he had gone to father of the
appellant at Kolhapur and asked about their whereabouts, but his father
also shown his ignorance. On 2 nd August the victim was found at
Badodara, Gujarat and thereafter she was taken back by him with the
help of police persons. When leading question was asked he admitted
that the victim informed him that the appellant took her to Durg by bus
and in the night he made physical relation with her, thereafter, he took
her to Gujarat by train. He also admitted that the victim has informed
him that the appellant performed marriage with her at Gujarat and made
physical relation with her. In cross-examination he admitted that the
victim has not informed him as to with whom she eloped.
30. PW-6 is the maternal grand-mother of the victim and she is only
the witness of her missing from the house. She is not a witness of her
kidnapping or rape.
31. PW-7 Doctor Shriya Gidoda who medically examined the victim
has not found any external injury on her body and opined that no
definite opinion can be given regarding recent sexual intercourse.
Further, in the FSL report Ex.-P/37 no semen and sperm were found on
22
the vaginal swab of the victim and from scientific evidence also no
offence has been found proved against the appellant.
32. The version of the victim commands great respect and
acceptability, but if there are some circumstances which cast some
doubt in the mind of the court on the veracity of the victim’s evidence,
then it will not be safe to rely on the said version of the victim. There is
contradiction and omissions in the statement of the victim and her
parents. The law is well settled that in case of rape, conviction can be
maintained even on the basis of sole testimony of the victim. However,
there is an important caveat which is that the testimony the victim must
inspire confidence. Even though the testimony of victim is not required
to be corroborated, if her statement is not believable then the accused
cannot be convicted. The prosecution has to bring home charges
levelled against the appellant beyond reasonable doubts, which
prosecution has failed to do in the instant case.
33. Having considered the entire evidence available on record, we are
of the view that the prosecution has failed to prove its case beyond
reasonable doubt and the appellant is entitled for benefit of doubt.
Accordingly, the appeal filed by the appellant is allowed. The impugned
judgment of conviction and order of sentence is hereby set aside. The
appellant is acquitted from all the charges. He is reported to be in jail
since 05.08.2022. He be released forthwith, if not required in any other
case.
23
34. Keeping in view the provisions of section 481 of BNSS, 2023, the
appellant is directed to forthwith furnish a personal bond of 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 records 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
Aadil