Pradeep Kumar vs State Of U.P Thru. Prin. Secy. Home Deptt. Lko. And 3 Others

Court
Allahabad High Court

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
dated 18.01.2024, 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 convicted for the offences under Sections 3/4 (2) of the POCSO Act

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CRLA No. - 457 of 2024
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 complainant’s 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
complainant’s home to his daughter, whose date of birth is 19.07.2006.
The complainant alleged that the appellant had repetitively raped the
complainant’s 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

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CRLA No. - 457 of 2024
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
th
committed the misdeed on 27 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 prosecutrix’s body. Her hymen was old torn with
irregular edges. There was no mark of injury on her private parts. She

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CRLA No. - 457 of 2024
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 complainant’s
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.

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CRLA No. - 457 of 2024
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 Hon’ble
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

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CRLA No. - 457 of 2024
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.
*
The Hon’ble 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

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CRLA No. - 457 of 2024
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.”

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CRLA No. - 457 of 2024
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.”

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CRLA No. - 457 of 2024
18. In the aforesaid factual background, the Hon’ble 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
prosecutrix’s 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
medical ossification 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.

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CRLA No. - 457 of 2024
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

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CRLA No. - 457 of 2024
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 Hon’ble 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 Hon’ble
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 Hon’ble 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
Hon’ble 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)

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CRLA No. - 457 of 2024
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 Hon’ble 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

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CRLA No. - 457 of 2024
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 complainant’s
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.

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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 ignored by the trial court, which renders its
it has been
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

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CRLA No. - 457 of 2024
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 Hon’ble 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. In  Vaibhav v. State of Maharashtra : (2025) 8 SCC 315, the
Hon’ble 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 Raju v. State of M.P. : (2008) 15 SCC 133, the Hon’ble
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 t here 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 in Gurmit Singh case [State of
Punjab v. 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

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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 Hon’ble 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 Hon’ble 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

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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 Hon’ble 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

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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 prosecutrix’s vaginal swab, yet even when samples were drawn for

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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. In  Ritesh Chakarvarti v. 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. In  Davinder Singh v. State of Punjab , (2023) 19 SCC 229, the
Supreme Court referred to an earlier precedent on this point in the
following passage: -

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“ 9. On the issue of non-examination of material witness, we wish
to place reliance on the decision of this Court in  Takhaji
Hiraji v. 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

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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 prosecutrix’s 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

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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 dated 18.01.2024, 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
convicted for 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 Hon’ble Supreme Court in case any appeal is filed
against this order and the Hon’ble 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.)
Digitally signed by :-
RAM SINGH
High Court of Judicature at Allahabad,
Lucknow Bench