Vivek Kurre @ Poklin Vs State of Chhattisgarh

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2026:CGHC:16596-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 112 of 2024

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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

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... Appellant

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versus

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1 - State of Chhattisgarh Through The Station House Officer, Police Station Kasdol, District : Balodabazar-Bhathapara, Chhattisgarh

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... Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Mr. Satya Prakash Verma, Advocate. For State : Mr. N.K. Jaiswal, Deputy Govt. Advocate.

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Hon’ble Shri Ramesh Sinha, CJ &

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Hon’ble Shri Ravindra Kumar Agrawal, J Judgment on Board

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10-04-2026 Per Ramesh Sinha, Chief Justice

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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.

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Digitally signed byMOHAMMED 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:-

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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.

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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.

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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 16-092009. 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.

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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.

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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.

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9. We have heard learned counsel for the parties and perused the records carefully.

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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?

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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.

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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.

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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 :

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“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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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:-

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"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."

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13. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &

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Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under :

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“33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

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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

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to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

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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 subsection (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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.”

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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 :

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“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

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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 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.

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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:

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“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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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:

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“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.

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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.”

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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.

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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.

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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 1609-2009 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.

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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.

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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 12^th June, she made a telephonic call to the appellant and she called him to take her back. The appellant came to the village on 25^th 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.

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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

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942, the Hon'ble Supreme Court has held in Para 9 and Para 10 of its judgment that:-

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“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.

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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".

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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:

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“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:

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“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

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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.”

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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 :

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"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

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note the following observations of this Court in Raju v. State of M.PA, which read thus: (SCC p. 141. paras 10-11)

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"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.

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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."

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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

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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 crossexamination 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.

¶104

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.

¶105

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28. PW-3, maternal grand-father of the victim has not stated any specific about the offence of kidnapping and rape by the appellant.

¶107

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.

¶108

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.

¶109

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

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the vaginal swab of the victim and from scientific evidence also no offence has been found proved against the appellant.

¶112

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.

¶113

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.

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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.

¶116

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.

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Sd/Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Aadil

Vivek Kurre @ Poklin v. State of Chhattisgarh

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Vivek Kurre @ Poklin v. State of Chhattisgarh

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