SUNILversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

               CRIMINAL APPEAL No. - 5731 of 2021

Sunil
                                                        .....Appellant(s)
                                 Versus
State of U.P. and Another
                                                      .....Respondent(s)

Counsel for Appellant(s)  : Mohammad Haadi Zaidi, Rajesh
                            Kumar Srivastava, Virendra Kumar
                            Srivastava, Zia Naz Zaidi
Counsel for Respondent(s) : G.A., Manoj Kumar Mishra

A.F.R.


                                      Judgement Reserved on 21.08.2026

                                      Judgement Delivered on 11.09.2026
Court No. - 38

                   HON'BLE ACHAL SACHDEV, J.

1. None appeared on behalf of the opposite party no.2/first informant
even in revised call.

2. Heard Ms. Zia Naz Zaidi, learned counsel for the appellant and
Shri Mohammad Shoaib Khan, learned A.G.A. for the State-
respondent.

3. The instant appeal is directed against the judgment and order
dated    07.10.2021     passed   by   the   Special   Judge    (POCSO
Act)/Additional Sessions Judge, Court No.29, Agra in Special Trial
No.636/2019 (State of U.P. vs. Sunil) arising out of Case Crime
No.1278/2018 registered at Police Station Tajganj, District Agra,
under Sections 363, 366 and 376 of the Indian Penal Code and
Sections 3/4 of the Protection of Children from Sexual Offences Act,
2012. By that judgment the appellant, Sunil, was convicted and
sentenced in 363, 366 and 376 of the Indian Penal Code as recorded
therein and charges had earlier been framed against him on
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27.07.2020.

4. The prosecution's case, as unfolded in the FIR lodged by PW-1
Narendra Singh, the grandfather of the victim, is that at about 01:00
a.m. in the early hours of 19.11.2018 the victim (PW-3), then said to
be about 14 years old, was taken away from her house by the
appellant Sunil and one unidentified companion in a vehicle. On
learning of this, PW-1 raised an alarm and informed the police on the
emergency helpline. Villagers assembled and the vehicle was
pursued by the villagers and the police together. The appellant and
the victim were apprehended near the road by the Rohta Canal at
Baheta (Bajheta) that same morning, the companion having fled.
Both were brought to the police station, where the FIR (Case Crime
No.1278/2018) came to be registered later that day at 10:22 a.m.

5. The victim was medically examined on same day at 03:45 p.m.
only a few hours after her recovery that morning by Dr. Neelam Rani
(PW-7). The history she gave the doctor was that she had been
sleeping at about 01:00 a.m. with her grandmother and two sisters
when two persons i.e. the appellant and one unidentified companion
entered through an open structure, lifted her and took her away and
while she shouted, her mouth was pressed whereupon she lost
consciousness and when she regained consciousness near some
trees beside the canal. Asked specifically whether she had been
sexually assaulted, she said she did not know whether rape had been
committed. On examination, she bore no external injury including to
the urethral meatus, vestibule or perineum; her hymen was old, torn
and healed; swabs and samples were taken and the opinion recorded
at that stage was that there were no signs suggestive of sexual
violence and the Forensic Science Laboratory report being awaited.

6. The appellant in his statement recorded under Section 313 Cr.P.C.
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stated that he was merely the driver of the vehicle in question, the
same vehicle used to ferry the victim and her siblings to school and
that he had been falsely implicated after a dispute over Rs.6,000/-
said to be due to him as vehicle-rental charges.

                   POINTS FOR DETERMINATION

7. On the material on record, the following points arise for
determination in this appeal, each considered independently since
proof of one does not without more, establish another:-

(i) Whether the prosecution has established that the victim was below
eighteen years of age on the date of the occurrence;

(ii) Whether the prosecution has established that the appellant took
the victim out of the keeping of her lawful guardian, so as to attract
Section 363 IPC;

(iii) Whether the further, independent ingredient of Section 366 IPC,
kidnapping or abduction with the statutory intent, stands separately
established;

(iv) Whether the prosecution has established that the appellant
committed penetrative sexual assault upon the victim, so as to
sustain the conviction under Section 376 IPC and Sections 3/4 of the
POCSO Act;

(v) Whether the appellant's explanation, that he was merely the driver
of the vehicle and was falsely implicated on account of a monetary
dispute, is sufficient to raise a reasonable doubt when tested against
the objective circumstances of the recovery;

(vi) Whether the trial court adverted to and properly appreciated the
discrepancies, if any, between the victim's statement to the examining
doctor, her statement under Section 164 Cr.P.C. and her deposition
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at trial, before convicting the appellant under Section 376 IPC and
Sections 3/4 of the POCSO Act; and

(vii) What effect, if any, a finding that the victim was a consenting
party would have on the charges under Sections 363 and 366 IPC,
and under Section 376 IPC and Sections 3/4 of the POCSO Act,
respectively.

APPRECIATION OF THE EVIDENCE OF THE VICTIM, PW-1, PW-
2, PW-4, PW-5 AND PW-8

8. The prosecution's case concerning the victim's removal from her
house, her recovery near the Rohta Canal at Baheta (Bajheta), the
appellant's apprehension and the earliest disclosure of the sexual
assault rests substantially on the testimony of the victim (PW-3), her
close relatives and the Investigating Officer. Those relatives are PW-
1 Narendra Singh, her grandfather (the victim being his Natini or
granddaughter)      and   PW-1's   nephews     PW-2    Madan,      PW-4
Dharmendra Singh and PW-5 Pravendra Singh, each of whom refers
to the victim as his niece. The Investigating Officer is PW-8 Pradeep
Kaushik. Their evidence is examined below, both individually and
cumulatively and set against the contemporaneous documentary and
medical material.

9. The victim in her statement recorded under Section 164 Cr.P.C.
stated that "दिनांक 18.11.2018 को रात के एक बजे मैं सो रही थी…" ["On
18.11.2018, at about one o'clock at night, I was sleeping…"]. In her
deposition before the trial court, however, she stated that "घटना दिनांक
19.11.2018 की है, घटना रात के एक बजे की है…" ["The occurrence is of
19.11.2018, the occurrence is of one o'clock at night…"]. There is
thus a discrepancy of a full calendar day as to the date of occurrence.
This matters because the FIR was registered on 19.11.2018 at 10:22
a.m., alleging the occurrence at about 1:00 a.m. the same date; the
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discrepancy cannot be brushed aside as inconsequential since it
goes to the very date on which the prosecution's entire chain of
events is anchored.

10. There is a corresponding discrepancy as to the victim's own date
of birth. In her statement recorded under Section 164 Cr.P.C. she
gives it as "जन्म तिथि 02.11.2005 है" ["date of birth is 02.11.2005"],
whereas in her deposition she states that "मेरी जन्म तिथि 15.03.2005 है"
["my date of birth is 15.03.2005"]. Both dates, if accepted, would
place her below 18 years on the date of occurrence and to that extent
neither assists the appellant but the discrepancy itself means that the
victim's own oral assertions cannot substitute for documentary proof
of age particularly where the prosecution invokes the POCSO Act.
PW-1's oral estimate that she was "14 years" fares no better, in
cross-examination he admits there is no birth certificate with him that
he does not remember the school in which she was first admitted, the
class in which she was admitted or the age recorded at admission
and the victim herself states that she does not remember the year of
her first admission to school or the age recorded then. No
documentary proof of her age, neither school admission records nor a
birth certificate, has been proved by the prosecution at all. The finding
of minority accordingly rests entirely on these variable oral assertions
and the Medical Board's approximate X-ray assessment, rather than
on the best evidence that would ordinarily be expected and that
appears to have been readily available.

11. The victim's deposition gives a considerably more detailed
account of the manner of her removal than her statement recorded
under Section 164 Cr.P.C., she states that she was sleeping between
her sisters Sapna and Shivani in a dark room; that two persons lifted
her, one holding her hand and the other her legs, the latter
subsequently releasing her legs while the appellant continued to hold
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her, she was taken to the rear wall placed upon it and pulled down on
the other side, crying out at that stage; the vehicle stood about 10-15
feet away, she was placed on its rear seat; the second person drove
while the appellant sat with her and held her and her mouth was
pressed or closed inside the vehicle so that she could not raise an
alarm. She further describes the rear wall as about four feet high with
a broken portion through which a person could pass, an open space
with no house behind it and the vehicle parked only 3-4 feet from that
point. This part of her account was capable of objective verification
from a site plan of the house and a spot inspection but the
investigation never drew up any such plan; the height and condition
of the wall, the space behind it and the distance at which the vehicle
is said to have been parked accordingly remain matters resting solely
on her own word, an avoidable omission on the investigation's part
rather than a gap that arose only for want of proof at trial. A separate
site plan, marked as Exhibit Ka-9, was filed in original in respect of
the place of recovery but no witness was examined to prove it and
that document in any event relates to a different location and does
not touch this part of her account. At the same time, her admission
that she had never told the appellant which room she slept in and that
she does not know how he came to be at that room is an unexplained
circumstance bearing on the prosecution's implicit suggestion of a
planned or targeted removal in the mid of the night.

12. The most significant feature of the victim's cross-examination is
her categorical statement that "जब मैं चिल्लाई तब मेरे घर पर से कोई नहीं आया था।
" ["When I screamed, no one came from my house."] She adds that
her sisters Sapna and Shivani were sleeping in the same dark room
and did not notice she was being taken away even as she was placed
on the wall. This has to be set against her statement recorded under
Section 164 Cr.P.C., where she said that when she was being taken
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away she cried and her family members heard her voice, following
which her uncles followed the vehicle: "जब सुनील मुझे उठाकर ले जा रहा था तो
मैं चिल्लाई थी… मेरे घरवालों ने ये सब आवाज सुनी थी…" ["When Sunil was lifting
and taking me away, I cried out… all my family members heard that
voice…"]. The contradiction is not incidental. It goes to the very
genesis of the pursuit on which the prosecution relies upon the
victim's cry, the family becoming aware, the alarm being raised,
villagers assembling, the police being informed and the pursuit
beginning. Where that chain is relied upon as an important
corroborative circumstance for the alleged abduction and recovery, a
victim who says in the same breath that nobody came when she cried
undermines its very first link.

13. The victim states that her sisters Sapna (about 15 years) and
Shivani (about 12 years) were sleeping with her in a room with a
single door, her brothers Rishabh and Aryan were sleeping with their
mother in another room, her father was in Delhi at the time and her
grandparents were sleeping in the verandah. PW-2, however, states
that Rishabh was also sleeping in the same room as the victim,
Sapna and Shivani. This matters because the prosecution's case
depends on the victim's cries being heard and acted upon by persons
sleeping in or near that room; the actual sleeping arrangement and
the fact that her father was not even in the house, bears on how
naturally the asserted immediate family reaction fits the rest of the
account,    without   rendering       the   prosecution    case    physically
impossible. Sapna and Shivani, who were sleeping in the very same
room and would accordingly be the persons best placed to say
whether any disturbance occurred there that night, were never
questioned by the Investigating Officer at all and their names do not
appear even in the list of witnesses in the charge-sheet, so this is not
a case of two named witnesses who were merely left unexamined at
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trial; the investigation never proposed to rely on them in the first
place, though they were on the victim's own account, readily
identifiable and available. Two immediate family members sleeping
beside the victim, who could easily have shed light on whether any
disturbance occurred in that room that night, were thus kept out of the
case from its very inception. This is precisely the kind of omission of
Section 114, illustration (g), of the Evidence Act speaks to: that
evidence which could be and is not produced would, if produced, be
unfavorable to the person who withholds it. The rule requires a party
to bring forward the best available evidence on a point within its
control and the prosecution's failure to do so here, in respect of the
two witnesses closest to the occurrence itself, entitles this Court to
draw an adverse inference against the reliability of its account of the
alarm and the family's immediate response (Mohan Lal Shamlal
Soni v. Union of India, AIR 1991 SC 1346).

14. Considered cumulatively, the manner in which the victim
describes her removal is itself a circumstance calling for explanation.
An alarm said, on the version of PW-1 and PW-2, to have been loud
enough to wake the household, bring the family out and rouse a
crowd of 100-150 villagers is on the victim's own admission, unheard
by her sisters sleeping beside her in the very same room, by her
grandparents sleeping in the verandah or by her brothers in the
adjoining room. A minor girl, surrounded within the house by her
siblings and grandparents on her own account is said to have been
lifted from her bed, carried to a rear wall and passed over a broken
portion of it, crying out as she went, without a single family member
stirring; it is only once she is already outside, on the prosecution's
own case, that the alarm is in fact raised and the pursuit begun. This
improbability is compounded, rather than resolved, by the fact that
the investigation never made a site plan of the house at all; the Court
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has no contemporaneous documentary basis on which to assess the
distances involved, the layout of the rooms, or the plausibility of the
account and is left to weigh an inherently improbable sequence of
events against oral testimony alone without the elementary safeguard
that the investigation could readily have supplied and did not.

15. The victim's account of her own state of consciousness is not
straightforward. She states: "गाड़ी में मेरा मुँह पर हैंकी रुमाल रख दिया था उसके बाद
मैं बेहोशी हालत में हो गई थी…" ["In the vehicle, a handkerchief was placed
over my mouth, after which I fell unconscious…"], but later states: "जब
कपड़े उतार रहा था तब मैं हल्की-हल्की होश में आ गई थी…" ["When [he] was
removing [my] clothes, I regained slight consciousness…"]. This is
not by itself a ground to reject her testimony but the sequence,
unconscious and then partially conscious during the assault itself
needs to be tested against the medical evidence, the means by which
she says she was rendered unconscious and the investigation.

16. The contradiction on this point is sharper than a mere variation in
degree. At one point she is recorded as stating that she regained
consciousness       only    when       she   found    herself    on   the    canal
embankment i.e., after the assault was already over and she had
been left there, which would mean she has no independent memory
of the assault itself. This is irreconcilable with her cross-examination
account of regaining consciousness while still in the vehicle and while
the rape was in progress, an account in which she goes on to
describe the circumstances of the assault in considerable and vivid
detail. A witness cannot simultaneously have no memory of an event
and a vivid, detailed memory of it; one or the other account must give
way and neither the investigation nor the trial court's judgment
resolves which. This unexplained inconsistency on the central factual
question of whether she has any recollection of the assault at all goes
well beyond peripheral variation and bears directly on the weight her
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account of the assault can bear.

17. The victim admits: "मैं घड़ी नहीं पहनती हूँ और मेरे कमरे में भी घड़ी नहीं है।" ["I do
not wear a watch and there is no clock in my room either."] She
further states that she does not know what time she left Baheta
(Bajheta) with her uncle and that she learned of the "about one
o'clock" timing only later, from the villagers. The "01:00 a.m." figure is,
however, well documented elsewhere on the record, it is given in the
statements of PW-1 and PW-2 and is recorded in the tahrir itself as
the time of occurrence. What the victim's admission shows is only
that the figure does not rest on her own perception of time; she was
not, on her own account, in a position to fix it herself, having no watch
and no clock in her room and it must accordingly be weighed as PW-
1's and PW-2's own estimate tested on its own footing, rather than as
a fact independently corroborated from more than one source.

18. The victim states that she returned home at about 04:00 a.m. with
her uncle Madan (PW-2) on a motorcycle, accompanied by one
Chotu and that other villagers Hariom, Murari, Dharmendra, Ravin,
Chotu, Rajesh and others were also present. She states that she was
conscious at that time and was wearing leggings and a kurti and had
no visible injury on her body. She also states that where her uncle
found her at Baheta (Bajheta) there were several shops but they were
closed and no one was present at that time a detail difficult to
reconcile with PW-2's assertion that 100-150 villagers had assembled
and pursued the vehicle. As to the second person, the victim
consistently states that his face was covered and she could not
identify him; she also states that it was this second person who was
driving while the appellant sat with her in the rear, a detail requiring
reconciliation with the prosecution's own case that the appellant was
the regular driver of the school vehicle and requiring the investigation
to show what efforts, if any, were made to identify that second
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person.

19. The victim gives a specific account of the assault. The vehicle
was stopped; her clothes (including her suit/leggings, inner-wear and
undergarment) were removed; the appellant committed rape upon her
for about seven or eight minutes; she was frightened and resisted
and he then returned her clothes, which she put on herself. She
states that she suffered no injury, no pain and that her clothes were
not bloodstained, a position PW-2 corroborates to the extent of
saying he saw no blood near the bushes, the vehicle or on her
clothes. At one stage she describes the assault as having occurred "
गाड़ी रोककर और चलती गाड़ी में" ["both with the vehicle stopped and in the
moving vehicle"], a formulation later refined into the more specific
stopped-vehicle account. Absence of injury or blood does not by itself
disprove sexual assault, nor is physical injury an indispensable
consequence of rape but where the victim gives so specific an
account, the medical evidence must be examined squarely against it.
The interval between the alleged assault and the examination, the
findings on genital examination, whether semen or other forensic
material was detected, whether her clothes were seized and
forensically examined, the history recorded by the doctor and whether
the medical findings are consistent, inconsistent, or neutral in relation
to this particular account.

20. Set side by side, the victim's statement recorded under Section
164 Cr.P.C. and her deposition at trial depart from one another at
several points. The date of occurrence itself shifts from 18.11.2018
under Section 164 Cr.P.C. statement to 19.11.2018 at trial, as does
her own date of birth given as 02.11.2005 in the former and
15.03.2005 in the latter. On the cry or alarm, the statement recorded
under Section 164 Cr.P.C., has her family hearing her cries and her
uncles following the vehicle, while at trial she states that her sisters
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did not notice and that no one came from the house. The manner of
her exit from the house changes from being lifted and taken away to
being taken out over the broken rear wall. Her account of returning
home likewise shifts from her uncles reaching the jungle near the
canal in statement recorded under Section 164 Cr.P.C., to Uncle
Madan and others bringing her from Baheta (Bajheta) at about 4:00
a.m. at trial, where she also specifies for the first time that she was
conscious and bore no visible injury, a condition left unspecified
earlier. The source of the "1 o'clock" time also shifts from being stated
as fact to being attributed to what she was told afterward by villagers
since she had no watch of her own and while the statement recorded
under Section 164 Cr.P.C. speaks of two persons having taken her
away, her trial evidence is that the second person's face was covered
and he could not be identified.

21. None of these discrepancies is, by itself, necessarily fatal to the
prosecution case; variations in the recollection of time and peripheral
detail are not unusual in evidence concerning a night-time occurrence
and the testimony of a victim of sexual assault is not to be discarded
merely because every surrounding circumstance is not narrated with
precision. The real question, addressed further below, is whether
these discrepancies, considered cumulatively and together with the
evidence of PW-1 and PW-2, affect the core of the prosecution
narrative or remain peripheral to it.

22. PW-1 is not, on his own account, a witness to the alleged sexual
assault; his evidentiary role is that of an alleged immediate rescue
and pursuit witness and thereafter a witness to the victim's alleged
immediate disclosure. He states that at about 01:00 a.m. he came to
know that the appellant was taking his granddaughter away in an Eco
vehicle that he raised an alarm and called the police on the 100
number that villagers gathered, that police arrived and that the
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villagers and police together pursued the vehicle and apprehended
the appellant and the victim near the Rohta Canal at Baheta
(Bajheta), the other person fleeing. This account is not corroborated
by the victim's own evidence; she states that, "गाड़ी में बैठाते हुए किसी ने देखा
या नहीं देखा, मैं नहीं बता सकती।" ("Whether anyone saw me being put into
the vehicle or not, I cannot say.") and that no one came from the
house when she cried. If the victim herself does not support the
genesis    PW-1      describes,       his   account   requires    independent
corroboration, since he is projected not merely as a witness to a
subsequent fact but as the person whose own perception is said to
have set the pursuit in motion.

23. PW-1's evidence on the apprehension of the appellant is itself not
consistent, at one point he says, the villagers caught the appellant
and at another that the police apprehended him and at yet another
that it was the police vehicles which arrived that caught him. Since
the immediate apprehension of the appellant near the place of
recovery is one of the strongest circumstances relied upon by the
prosecution as corroboration, this inconsistency requires resolution
from the arrest memo, the General Diary entries and the testimony of
the police personnel concerned, rather than being left to the shifting
oral account of a family witness.

24. PW-1 also gives a chronology of the immediate aftermath
materially different from the victim's own account. He states that his
house was about 2½ kilometers from the Rohta Canal, that they
reached it in about five minutes, that they left home at about 1:30
a.m., that they reached the police station at about 4-5 a.m., that the
report was written at about 5-6 a.m. and that he and the victim
returned home only at about 9-10 a.m. The victim, by contrast, states
that she returned home at about 04:00 a.m. and was taken to the
police station only at about 10:00 a.m. i.e. her return home preceded
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the visit to the police station, the reverse of PW-1's sequence. This is
a material difference in the chronology of the immediate aftermath
and it becomes still more significant in relation to the FIR. The record
shows registration of the FIR at 10:22 a.m. on 19.11.2018, while PW-
1 states that the report was written at about 5-6 a.m. This time of 5-6
a.m. finds no support either in the case diary or the chik register, both
of which are silent on it and record only the time of 10:22 a.m. of
registration of the FIR; the 5-6 a.m. figure accordingly rests solely on
the oral estimate of PW-1 and PW-2, unverifiable against any
documentary entry and stands as an unexplained discrepancy rather
than a mere approximation, particularly since prompt lodging of the
FIR is itself relied upon as a circumstance supporting the
prosecution's case.

25. PW-4 Dharmendra Singh is the informant's nephew, PW-1 being
his Tau (paternal uncle) and states that the victim is the daughter of
his cousin and accordingly refers to her as his niece. In examination-
in-chief, he corroborates PW-1 and PW-2 in material particulars and
he states that he reached at the spot on hearing the commotion
raised by PW-1 Narendra Singh and on reaching learned that the
accused Sunil had taken away the victim; that someone had dialed
on 100-number and the local police arrived; that he, along with others
and the police pursued the accused and caught hold of him at the
Rohta Canal, whereafter the accused, together with the girl, was
brought to the police station, where a written report was lodged and
that he had himself scribed the tahrir on the dictation of Narendra
Singh on the basis of which the criminal case against the accused
came to be registered. To that extent, his evidence corroborates PW-
1 and PW-2 on the genesis of the pursuit and the apprehension at the
Rohta Canal and establishes that he, not PW-1, was in fact the scribe
of Exhibit Ka-1. In cross-examination, however, this account is
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materially qualified. PW-4 admits that he did not see the victim being
taken away with his own eyes and that the victim told him nothing. He
states that he brought the victim back to the village after her recovery
but does not remember when the FIR was registered since he had by
then returned home that they reached the police station at about
4:40-5:00 o'clock and that many people were present, both at the
police station and at the place of occurrence. He further states that
Pravendra (PW-5), Narendra (PW-1), Madan (PW-2) and many other
people had reached the spot and that it was the informant, PW-1,
who took the victim to the police station, not PW-4 himself, consistent
with his admission that he does not remember when the FIR was
registered. He puts the time at which appellant Sunil was caught at
about 3-4 o'clock, a materially later time than PW-2's estimate of
about 01:40 a.m., adding a further, unreconciled variation to the
timing of the apprehension. He states that he did not know the
appellant Sunil prior to the incident. On the manner of apprehension,
he states that on reaching the place, he saw appellant Sunil running
towards the vehicle and the second unidentified person ran towards
the fields and could not be caught despite being pursued and that he
himself caught Sunil and that the victim was found lying in an empty
field in the jungle, a description of the place of recovery that does not
correspond either to the victim's own account of being brought home
from Baheta (Bajheta), where there were shops, though closed, or to
PW-1's and PW-2's own mutually inconsistent descriptions of where
she was found, nor, for that matter, to the site plan of the place of
recovery Exhibit Ka-9, which depicts the embankment of the Rohta
Canal and shows no jungle at all. PW-4's evidence accordingly falls
into two distinct parts. As to the genesis of the pursuit and the
apprehension at the Rohta Canal, his account lends the prosecution
some corroboration and he is, on his own showing, an eyewitness to
that part of the sequence in a way neither PW-1 nor PW-2 is shown
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to be but that corroboration comes from a witness who is himself the
informant's nephew and by his own account, the victim's niece
through his cousin, an interested family witness in the same category
as PW-1 and PW-2, not an independent villager and it adds another,
materially different, account of the precise place and condition in
which the victim was found. As to the manner of the victim's actual
removal from the house and the alleged assault, he candidly admits
he saw nothing and was told nothing by the victim; on those
questions his evidence adds nothing beyond what PW-1 and PW-2
have themselves already stated.

26. PW-5 Pravendra Singh is likewise a witness of fact and in
examination-in-chief broadly corroborates the prosecution case and
the evidence of PW-1 and PW-4. He states that he is a further
nephew of the informant, the informant being his Tau and states that
the victim is the daughter of his cousin and accordingly refers to her
as his niece; that he reached the informant's house after hearing the
commotion, where he learned that the victim had been taken away by
two persons; that he reached the spot at about 1 o'clock, where he
met Narendra, Madan, Murarilal and many others; that he too joined
the pursuit along with Madan; that the victim was recovered from near
the Rohta Canal and the accused Sunil was caught, the police having
also reached by then and that the police thereafter took the victim
and the accused to the police station in their vehicle, in which he
himself was also sitting, alongwith one other person in addition to the
accused. In cross-examination, he further describes the victim as
having been found near Baghera village, in the jungle, in a field, with
Sunil in her proximity and states that the appellant was caught by the
villagers with police assistance. Like PW-4, PW-5 is accordingly a
family witness, a further nephew of PW-1 who, on his own account, is
the victim's niece through his cousin, not an independent villager,
                                                     CRLA No. 5731 of 2021
                             17


whose evidence goes only to the pursuit and recovery and not to the
manner of the victim's removal from the house or to the alleged
assault, on neither of which he claims personal knowledge. His
account of the place of recovery broadly coincides with PW-4's
description but differs from the victim's own account of being brought
home from Baheta (Bajheta), where there were shops and from the
varying descriptions given by PW-1 and PW-2, adding a further, if
partly overlapping, version to that already unsettled question, a
version that, like PW-4's, sits uneasily with the site plan of the place
of recovery, which depicts the canal embankment and shows no
jungle at all.

27. It is further stated that the chik register entries themselves are
correct and that the tahrir was reproduced from the statement of PW-
3, the victim, rather than independently narrated by PW-1 as
informant. If so, the register entries recording the FIR's registration
are not themselves in question but the written report does not stand
as PW-1's own spontaneous, first-hand account of the occurrence in
the manner a first information report ordinarily would; its evidentiary
character and what that means for the weight it can bear as an early,
contemporaneous account, require to be assessed with that feature
in mind. PW-4, the scribe who reduced it to writing, confirms in his
own testimony that he wrote the tahrir at PW-1's dictation but his
deposition does not fix the time at which he did so, the gap between
PW-1's estimate of preparation at about 5-6 a.m. and the FIR's
recorded registration at 10:22 a.m. accordingly remains unresolved.

28. PW-2 is himself a nephew of PW-1, PW-1 being his paternal
uncle and is in the idiom common to such family usage, described as
the younger brother of the victim's father, himself PW-1's son and
accordingly refers to the victim as his niece. He initially gives a
version that appears to provide substantial corroboration that the
                                                        CRLA No. 5731 of 2021
                                18


appellant took the victim away in Eco vehicle No.UP 80 EC 1820; that
PW-1, his uncle, saw her being taken and raised an alarm; that the
family and villagers came out and pursued the vehicle; that the police
were informed; that the appellant and the victim were found near the
Rohta Canal at Baheta (Bajheta); that the second person escaped
and that the victim told him the appellant had removed her clothes
and raped her. In cross-examination, however, PW-2 admits that he
did not see the appellant taking the victim away, did not see her being
put into the vehicle and did not witness the alleged assault and when
asked     how     she     was        taken   away,   "बहला-फुसलाकर"     ["by
inducement/enticement"], he states plainly "मैंने नहीं देखा।" ["I did not see
[it]."] His assertion of inducement is accordingly hearsay unless
independently founded and it does not sit well with the victim's own
account of being forcibly lifted from sleep, held by her hand and legs
and taken over the rear wall, an account of force, not inducement.

29. PW-2's account of the genesis of the pursuit is similarly at odds
with the victim's evidence. He states that the victim first cried "बचाओ-
बचाओ" ["save me, save me"], that her grandfather raised an alarm,
that more than 100-150 villagers assembled, that a call was then
made to the police and that the police arrived about half an hour later.
This is difficult to reconcile with the victim's categorical statement that
no one came from the house when she cried. The assertion that 100-
150 villagers gathered is itself capable of independent verification, if
true, at least some of those persons ought to be identifiable and
available to depose as to what they saw. The great bulk of these
villagers cannot be identified or named at all, PW-1 and PW-2 have
themselves named certain individual villagers as having been present
and two of those named persons, PW-4 Dharmendra Singh and PW-
5 Pravendra Singh, have in fact been examined, each lending some
corroboration to the fact of the pursuit and apprehension at the Rohta
                                                     CRLA No. 5731 of 2021
                             19


Canal. Both, however, are themselves nephews of PW-1 who
describe the victim as their niece through a cousin, so their evidence
remains that of interested family witnesses rather than independent
villagers and the great bulk of the 100-150 persons PW-2 describes
remains unidentified and unexamined. The assertion of a large,
spontaneous village gathering accordingly still rests, in substance, on
PW-1, PW-2, PW-4 and PW-5's own word, none of them independent
of the family.

30. PW-2 states that police arrived in two or three vehicles, including
a Bolero and motorcycles, about half an hour after the call; that the
appellant was apprehended by the police, though at another point he
had said the villagers caught him; that he does not know the name of
the apprehending officer and that the apprehension took place at
about 01:40 a.m. If that time is accepted, the chronology becomes
occurrence at about 01:00 a.m., apprehension at about 1:40 a.m., the
victim remaining at or near the canal and her return home only at
about 04:00 a.m. This sequence needs to be reconciled with the
victim's own account that the appellant left her near the canal and fled
and that she was thereafter found by her relatives and requires
testing against the arrest memo, the police diary, call records and the
testimony of the police personnel. The witnesses are similarly
inconsistent as to the precise place and condition in which the victim
was found. PW-1 describes her, at different points, as near the other,
unapprehended, person and as standing near the police; PW-2
describes her variously as near the bushes, near the vehicle and near
the appellant. These variations may all describe different moments of
the same sequence and the Court cannot assume that reconciliation
without a recovery memo, a seizure memo or other documentary
material establishing the sequence. A site plan of the place of
recovery was filed in original and marked as Exhibit Ka-9 and could,
                                                              CRLA No. 5731 of 2021
                                  20


in principle, have fixed the relative positions the witnesses describe
but no witness was examined to prove it, so it cannot presently be
treated as proved evidence; on its face, moreover, the document
shows the embankment of the Rohta Canal with no jungle depicted
and no marking of the specific spot at which the victim is said to have
been lying, so that even the unproved document does not
straightforwardly support any of the witnesses' accounts. PW-8's own
testimony does not otherwise supply a clearer picture. These
variations accordingly remain unreconciled on the record as it stands.

31. As to the alleged immediate disclosure of the assault, PW-2
states that the victim told him the appellant had removed her clothes
and raped her and that she told the police the same. His evidence on
the latter point is qualified in a manner that matters, he admits that
the victim did not make her statement to the police in his presence
and that no signature was obtained in his presence, so his assertion
that she told the police about the rape is not founded on his own
hearing of that statement. More significantly, when confronted with
his own statement under Section 161 Cr.P.C., PW-2 could not explain
why it does not record either that the police apprehended the
appellant, or that the victim had disclosed the sexual assault to him
immediately. His answers were, "पुलिस के आने के बाद, पुलिस वाले पकड़ने की
बात नहीं लिखी है, तो मैं कोई वजह नहीं बता सकता हूँ।" ["It is not recorded that after
the police arrived, the police caught [him]; I cannot give any reason
for that."] and "अगर दरोगा जी ने बयान में नहीं लिखा है, वजह नहीं बता सकता।" ["If the
Sub-Inspector did not record it in the statement, I cannot say why."]
He further states that his statement under Section 161 Cr.P.C. was
recorded 15 to 20 days after the occurrence, at his home: "उसका बयान
घटना के पंद्रह-बीस दिन के बाद पुलिस ने लिया था… घर पर लिया था।"

32. A delay of 15 to 20 days in recording a witness's statement is not,
without more, a ground to reject his testimony but PW-2 is relied upon
                                                     CRLA No. 5731 of 2021
                             21


specifically as a witness to the immediate aftermath and the
prosecution specifically seeks corroboration from the immediate
apprehension of the appellant and the immediate disclosure of the
assault; the omission of exactly those two facts from his earliest
statement, coupled with his inability to explain the omission, is not a
peripheral matter. Read together with his admission that he did not
witness the manner of removal at all, at least three distinct aspects of
his evidence emerge as unsupported by his own personal knowledge
or by his own earlier statement: the manner of removal, the
immediate apprehension of the appellant by the police and the
victim's immediate disclosure of the assault to him. These correspond
to three of the principal corroborative links the prosecution seeks to
establish.

33. The delay in recording PW-2's statement assumes further
significance because he was not a witness who came to notice only
later; on his own account he was among those who joined the pursuit
that same night and was present when the appellant and the victim
were found near the Rohta Canal. He was accordingly available for
examination by the Investigating Officer within hours of the
occurrence, not merely available in some general sense weeks
afterward. Where a witness who was, or could have been, examined
at or shortly after the scene of occurrence is in fact examined only 15
to 20 days later and no explanation for that gap appears either from
his own evidence or from that of the Investigating Officer, the delay
itself becomes a suspicious circumstance rather than a mere
formality. In Ganesh Bhavan Patel v. State of Maharashtra, (1978)
4 SCC 371, the Supreme Court held that although delay in recording
a witness's statement does not necessarily discredit it, where the
witness was or could have been available for examination when the
Investigating Officer visited the scene of occurrence or soon
                                                     CRLA No. 5731 of 2021
                             22


thereafter and the delay nevertheless occurred, it casts doubt upon
the prosecution case. That doubt is compounded, not dispelled, by
the fact that the two omissions from PW-2's statement go precisely to
the immediate apprehension of the appellant and the victim's
immediate disclosure of the assault, the very facts a prompt
statement, taken while his recollection was fresh and before any
occasion for reflection or discussion with other witnesses, could have
been expected to record.

34. PW-2 cannot be treated as an eyewitness to the actual removal of
the victim from her room, for he candidly admits that he did not see
the manner in which the victim was allegedly induced or taken away.
His assertion that the victim was taken away by inducement is thus
not founded upon his personal knowledge. His assertion regarding
the police having apprehended the accused at the spot and his
assertion that the victim had immediately disclosed the sexual assault
to him do not find corresponding mention in his statement recorded
under Section 161 Cr.P.C. and he is unable to furnish any
explanation for these omissions. These omissions become material
because they relate not to peripheral circumstances but to the alleged
immediate apprehension of the accused and the earliest disclosure of
the alleged sexual assault. Their significance is heightened by the
victim's own testimony that when she raised an alarm while being
taken out of the room, no one from her house came to her rescue.
The prosecution evidence regarding how the family came to know of
the occurrence and commenced the pursuit is not consistent
internally.

35. PW-2's testimony is accordingly not liable to be discarded in its
entirety but nor can it be treated as independent corroboration of the
core occurrence. It divides into what he could plausibly know at first
hand, that he is the victim's uncle, that he went to the spot if that is
                                                      CRLA No. 5731 of 2021
                             23


independently established, that he saw the victim and the appellant if
the appellant was in fact apprehended there, that he saw the vehicle
and that he took the victim to the police station if that is proved and
what he could not, how the appellant induced or took the victim away,
how the assault occurred, what happened inside the vehicle and who
removed her clothes. For all of the latter, his evidence is derived from
what the victim told him and cannot serve as independent
corroboration of it. The same is true, to a lesser degree, of PW-1,
whose evidence on the genesis of the pursuit, its timing, the
apprehension    of   the   appellant   and   the   victim's   subsequent
movements likewise requires corroboration from the objective record
rather than acceptance at face value.

36. One circumstance favours the prosecution, the victim states she
already knew the appellant as the driver of her school vehicle and
PW-1 says the same, so the case does not depend on a first-time
identification of a stranger in darkness. PW-2 gives the vehicle's
specific registration number as UP 80 EC 1820 and the victim
describes it consistently as a black Eco. This is potentially valuable
corroboration but its value depends entirely on the prosecution
establishing the complete chain, ownership and registration of the
vehicle, the appellant's role as its driver, his possession of it at the
relevant time, its actual recovery or seizure at or near the place of
occurrence, the precise time, place and condition of that seizure and
whether any forensic material was recovered from it. No vehicle
seizure memo was in fact prepared by the police and no record of the
vehicle's ownership exists on the file either the vehicle's connection to
the appellant and to the place of recovery is accordingly not
supported by any document of any kind. Absent from that chain, the
vehicle number remains an assertion rather than a proved fact and it
does not without more explain why on the victim's own account, it
                                                     CRLA No. 5731 of 2021
                             24


was the unidentified second person who was driving that night while
the appellant sat with her in the rear. The site plan of the place of
recovery might have assisted in fixing the vehicle's position at the
time of recovery had it been proved but no witness was examined to
prove it and in any event it would not by itself have supplied proof of
ownership, seizure or the appellant's possession of the vehicle.

37. On a cumulative view, neither PW-1 nor PW-2 can be treated as
an eyewitness to the actual removal of the victim or to the alleged
assault; PW-2 admits as much in terms and PW-1's role is confined to
the alleged pursuit, recovery and subsequent disclosure. Taken
together, the variations bear heavily on how much weight their
evidence and the victim's own evidence can carry. The victim says no
one came when she cried, whereas PW-1 and PW-2 say her cries
alerted the family and triggered the alarm and pursuit. The victim
says, she cannot say whether anyone saw her being put into the
vehicle, whereas the prosecution witnesses' initial accounts suggest
the family saw her being taken. PW-2 says the appellant took her
away by inducement but admits he did not see how. The
apprehension of the appellant is attributed, at different points, to the
villagers and to the police by both PW-1 and PW-2. The victim's
precise   location   and   condition   at   recovery    are   described
inconsistently, near the bushes, near the vehicle, near the second
person, near the police. The victim says she reached home at about
04:00 a.m., whereas PW-1 places her return only at about 9-10 a.m.,
after the police-station proceedings, the two accounts reversing the
order of return-home and police-station visit. PW-1 says the report
was written at about 5-6 a.m., while the record shows FIR registration
at 10:22 a.m. The sleeping arrangement of the children is not
consistently stated between the victim and PW-2. PW-2's assertion
that the victim disclosed the assault to the police is not founded on a
                                                      CRLA No. 5731 of 2021
                              25


statement made in his presence and his court account of the police
apprehending the appellant and of the victim's immediate disclosure
to him finds no support in his own statement recorded under Section
161 Cr.P.C. for which he offers no explanation.

38. These discrepancies should not be weighed mechanically or in
isolation; variations in the recollection of time and of peripheral detail
are unremarkable in evidence of a night-time occurrence and a victim
of sexual assault is not to be disbelieved merely for want of
mathematical precision in every surrounding detail. The real question
is whether the contradictions and omissions affect the core of the
prosecution narrative and whether the remaining evidence furnishes
reliable independent corroboration of that core. The chain of
prosecution must establish runs from forcible removal, through the
victim's alarm, the family becoming aware, villagers assembling, the
100-number call, police arrival, pursuit, recovery of the victim,
apprehension of the appellant, immediate disclosure of the assault,
medical examination and on to seizure of the vehicle and further
investigation. Each link calls for independent examination. Had the
contemporaneous police record, the General Diary, the 100-number
call log, the arrest memo, the vehicle seizure memo, a site plan, and
the testimony of the police personnel, established this sequence, the
discrepancies in the evidence of PW-1 and PW-2 might not have
materially affected the prosecution case. That corroboration,
however, proves illusory on examination. A supurdaginama, the
memo by which one police party formally hands an accused into the
custody of another, recording the dial-100 police's handover of the
appellant to the local police station, has been exhibited as Ka-2, but it
was proved only through PW-2 himself, and neither PW-8 nor any
other police witness nor any police paper verifies it, so it cannot
supply corroboration of PW-2's account independent of PW-2's own
                                                     CRLA No. 5731 of 2021
                             26


word. No General Diary entry recording the same event exists on the
record at all and neither site plan, of the house of abduction, nor of
the place of recovery, was proved through the examination of any
witness. The oral evidence of PW-1 and PW-2 cannot, in that state of
the record, be treated as independently corroborated on the fact,
manner, time or place of the apprehension, or on the genesis of the
pursuit said to have led to it. The alleged immediate pursuit and
apprehension of the appellant, projected by the prosecution as one of
its strongest corroborative circumstances, must accordingly be tested
against that contemporaneous record, and not merely against the
shifting oral descriptions of the victim's relatives; the same applies to
the alleged immediate disclosure of the assault.

39. Whether that contemporaneous police record in fact supports the
prosecution's chronology is addressed next, in the light of the
evidence of the Investigating Officer, PW-8 Pradeep Kaushik, who
investigated the case and filed the charge-sheet against the
appellant. In his examination-in-chief, he describes the investigation
chronologically through the entries or parchas made in the case diary,
Parcha No.1 on 19.11.2018 by which he received the SHO's order
regarding the case against the appellant and one other person and by
which copies of the chik FIR, the report and the recovery memo were
obtained and examined and the case diary written up, the statements
of the FIR-writer, the complainant, referred to by this witness as
Narendra and the accused Sunil being recorded; Seizure Parcha
No.1A by which the victim's statement was recorded in the presence
of a female Sub-Inspector and copies of her medical examination and
the custody memo were entered in the case diary; Parcha No.2 on
22.11.2018 by which a copy of the age-determination report was
obtained; Parcha No.3 on 28.11.2018 by which slides and clothing
were sent to the Forensic Science Laboratory; Parcha No.4, on
                                                   CRLA No. 5731 of 2021
                            27


06.12.2018, by which the victim's statement under Section 164
Cr.P.C. was recorded and a further statement of the complainant
taken, and Sections 376 IPC and 3/4 of the POCSO Act were added
to the case and Parcha No.5 on 11.12.2018 concerning the
appellant's remand on the amended charge, the trial court's order
thereon, and the Special Judge (POCSO)'s clarification regarding the
amendment of the sections applied against the appellant.

40. This chronology is internally consistent throughout. The parcha
recording the victim's statement under Section 164 Cr.P.C. and the
addition of Sections 376 IPC and 3/4 of the POCSO Act dated
06.12.2018 is Parcha No.4; the remand-related entry, Parcha No.5 is
dated 11.12.2018, following the FIR (19.11.2018) and Parcha No.4
(06.12.2018) in proper sequence. No difficulty in the parcha
chronology remains.

41. PW-8's cross-examination discloses a materially different picture
of his own role than his examination-in-chief might suggest. He
admits that when the case was registered he was not posted at the
police station itself but at Chowki Ekla, an outpost 3-4 kilometres
away and that he was not present at the police station when the FIR
was written. He received information of the case on 19.11.2018 but
does not recall the time. The arrest memo of the appellant was not
prepared in his presence or he does not recall that it was. No article
or property, other than the accused persons themselves, was
recovered; besides the appellant, the victim was found in the hands
of the complainant. He thereafter recorded the complainant's
statement and then the appellant's. He does not recall whether the
appellant had any injury on his body. He was asked about the identity
of the appellant's companion but could not say. The appellant's
police-custody remand was not taken. Of particular significance to the
sexual-assault charges, PW-8 states that the victim, in the statement
                                                     CRLA No. 5731 of 2021
                             28


she made to him, did not mention that she had been sexually
assaulted, a further and materially earlier, account in which she is not
recorded as alleging rape, corroborating on this point her
contemporaneous statement to the doctor, and standing in the same
relation to her later statement recorded under Section 164 Cr.P.C.
and trial deposition as that earlier account does. Most significantly, he
confirms that it was the dial-100 police and not the police station's
own personnel, who went to the spot and that he does not recall the
dial-100 dispatch's serial number, the occurrence having become old.

42. PW-8 further agrees, as a matter of ordinary procedure; that
when the dial-100 police apprehend an accused at the spot and hand
him over to the police station and a case is registered; that handover
is reflected in a General Diary entry. On verification against the
record, however, there is no such General Diary entry at all, not
merely that one has not been produced before the Court but that
none exists on the record recording the dial-100 police's attendance
at the spot, the apprehension of the appellant, or the handover to the
police station. A supurdaginama purporting to record that handover
has been marked as Exhibit Ka-2 but it was proved not through PW-8
or any other police witness, and not through any police paper, but
through PW-2 Madan, the same family witness whose account of the
apprehension is itself internally inconsistent. Neither PW-8 nor any
police record verifies Exhibit Ka-2 or speaks to its execution at all. It
is a matter for comment that the General Diary entry by which the
accused Sunil is said to have been handed over to the police station
by the dial-100 police, after having been found with the victim on the
night she was taken from her house, does not exist on the record. In
that state of proof, the document cannot supply the independent,
police-side corroboration its subject matter would ordinarily call for
and the General Diary entry, which PW-8 accepts would ordinarily
                                                     CRLA No. 5731 of 2021
                             29


also exist, remains unexplained; it could easily have been placed on
the record by producing the relevant General Diary extract or by
examining the dial-100 police personnel who attended the scene.

43. PW-6 is a formal witness, who proves the Chik FIR Exhibit Ka-4
and the General Diary entry recording the registration of the case
Exhibit Ka-5. He states that the informant came to the thana along
with the vehicle bearing registration No.UP 80 EC 1820 on
19.11.2018 and that the GD entry records the time of institution of the
case as 10:22 hours vide GD No.32 dated 19.11.2018. In cross-
examination, he states that he informed the SHO before registration
of the FIR; that the Investigating Officer was not present at the time
and that he did not speak to the Investigating Officer; and that, as a
matter of ordinary practice, whenever an arrest is made by the dial-
100 police, an entry to that effect is made in the General Diary. On
this point, critically, he confirms that there is in fact no entry in the
General Diary as to when the accused was handed over at the police
station, direct police-witness confirmation, from the officer who
himself proves the GD, of the very omission noted above, and
considerably more probative of that omission than PW-8's mere
acceptance that such an entry would ordinarily exist. PW-6 further
states that when the accused was handed over, he was bleeding
from his right ear and complained of pain all over his body, a detail
bearing on the appellant's own physical condition at the point of
handover that does not otherwise appear in the evidence of the other
witnesses, and that this Court does not further characterize or draw
inferences from, beyond noting its presence on the record. He states
finally that the victim was not brought to the police station in his
presence and that he does not know when she was brought, so that
his evidence like PW-8's, leaves the timing and manner of the victim's
arrival at the police station without police-witness support from either
                                                     CRLA No. 5731 of 2021
                             30


of the two police witnesses examined.

44. This calls for a finding weighted against the prosecution, not a
calibrated middle ground. Exhibit Ka-2, the supurdaginama, has been
marked and exhibited but only through PW-2's own testimony; it is not
verified by PW-8 or any other police witness and no police paper
corroborates it. A document recording an inter-police handover ought,
in the ordinary course, to be proved through the police officers who
prepared or witnessed it, not merely produced and identified by a
family witness whose own account of the apprehension is itself
internally inconsistent. In that state of proof, Exhibit Ka-2 does not
supply corroboration of PW-2's evidence independent of PW-2
himself; he is both the source of the account and the person vouching
for the one document said to support it, so the two cannot corroborate
one another. Together with the absence of the General Diary entry
that would ordinarily also record the same event, an absence for
which the Investigating Officer offers no explanation, the objective
record lends materially less support to the prosecution's account of
an immediate, corroborated apprehension than Exhibit Ka-2's mere
presence on the file might at first suggest. This reinforces the
assessment of PW-1's and PW-2's evidence above: the fact, manner,
time and place of the apprehension remain to be tested against the
General Diary, the 100-number call log, the testimony of the police
personnel actually concerned, and the other material listed below,
none of which is presently on the record.

45. Something similar in result, though different in kind, applies to the
site plans, on which two distinct points require to be kept separate.
The victim's detailed description of the house from which she was
taken, the height and broken condition of the rear wall, the open
space behind it and the distance at which the vehicle was parked,
was in principle capable of independent verification through a site
                                                      CRLA No. 5731 of 2021
                              31


plan of that house and a spot inspection. No such site plan exists and
none ever did. PW-8 and his investigation simply never drew one up,
so the document is not merely unproved but was never there to be
proved in the first place. That is a lapse in the investigation itself and
quite different from a document that exists but was left unproved at
trial. The place of recovery stands on a different footing. A document
purporting to be the site plan of the place of recovery of the victim
and detention of the appellant was in fact prepared and filed in
original and marked as Exhibit Ka-9 and could in principle have fixed
the inconsistent descriptions given by PW-1 and PW-2 of exactly
where the victim was found. No witness was, however, examined to
prove it and it accordingly cannot presently be treated as proved
evidence, a distinct defect from the abduction-house plan's non-
existence, since here a document exists but was never proved,
whereas there none was ever made at all. It may be noted, without
treating the document as proved evidence for that purpose, that
Exhibit Ka-9 as filed depicts the place of recovery on the
embankment of the Rohta canal, it neither marks the specific spot at
which the victim is said to have been lying nor shows any jungle at
all. On its face, therefore, the document sits uneasily even with the
account of PW-4 and PW-5, who describe the victim as having been
found lying in an empty field in the jungle, a tension that exists quite
apart from the document's want of proof through any witness. The
place-of-recovery discrepancies therefore remain, like the General
Diary gap and the never-prepared site plan of the house of abduction,
unresolved on the record as it stands, and are, if anything,
compounded rather than resolved by the unproved document's own
content.

46. The decisive assessment, in the end must rest on whether the
victim's own substantive testimony standing on its own, is of such
                                                     CRLA No. 5731 of 2021
                             32


consistency and reliability as to safely sustain a conviction or whether
the discrepancies within her own successive accounts taken together
with the qualifications and omissions in the evidence of PW-1 and
PW-2, the absence of a proved General Diary entry, the absence of
any site plan of the house from which she is said to have been
abducted and a site plan of the place of recovery that was filed in
original but never proved through the examination of any witness,
together with the absence or inadequacy of other independent
documentary corroboration, create a reasonable doubt in the
prosecution case.

47. The evidence on age is not uniform. PW-1 puts the victim's age at
about 14 years, without documentary support. The victim's own two
formal statements give two different dates of birth, 02.11.2005 under
Section 164 Cr.P.C. and 15.03.2005 in her deposition and the
Medical Board on X-ray examination assesses her age at about 16
years. All three, if taken at face value, place her below 18 years on
the date of occurrence, so none of them assists the appellant's
contention that she was major but their mutual inconsistency means
that none can be treated as reliable proof of her precise age. PW-1
admits there is no birth certificate with him and he does not recall her
school admission particulars and the victim herself does not recall the
age recorded at her own admission. No documentary proof of age,
school admission records or a birth certificate, was in fact proved by
the prosecution at all; this is not a mere omission capable of later
cure but a settled feature of the record and the finding of minority
must accordingly rest entirely on these variable oral figures and the
Medical Board's approximate assessment, without the benefit of the
best evidence that would ordinarily be expected. Subject to that
qualification, minority as such appears reasonably established on the
present material, since the two dates of birth given by the victim
                                                      CRLA No. 5731 of 2021
                               33


herself and the Medical Board's X-ray assessment all converge on an
age below 18 even though no single precise date of birth is
established; the appellant's contention that the victim was major does
not appear sustainable, though the absence of any documentary
proof of age is itself a feature the final judgment should not pass over.

48. The evidence of PW-1, PW-2, PW-4, PW-5 and PW-8 has been
examined in full above and only the conclusions bearing directly on
Sections 363 and 366 IPC are summarised here. None of the four is
an eyewitness to the actual removal of the victim from the house or to
the alleged assault; their evidentiary role is confined to the alleged
pursuit, recovery and immediate disclosure and PW-4 and PW-5,
though offering some corroboration on the pursuit and apprehension,
are themselves the informant's nephews who describe the victim as
their niece through a cousin, rather than independent witnesses. That
evidence is internally inconsistent on points going to the core of the
prosecution's immediate-recovery theory; whether the victim's cries in
fact alerted the family, which she herself denies, who actually
apprehended the appellant and when, the precise place and condition
in which she was found and the chronology of her return home
relative   to   the   police-station   proceedings.   PW-2's    evidence
additionally suffers from his candid admission that he did not witness
the manner of removal and from two omissions in his statement
recorded under Section 161 Cr.P.C., the police's apprehension of the
appellant and the victim's immediate disclosure to him, for which he
offers no explanation. The vehicle said to connect the appellant to the
occurrence is now identified with a specific registration number by
PW-2, an improvement on PW-1's inability to recall it but its
corroborative value still depends on the prosecution proving the full
ownership, possession and seizure chain, a chain i.e. in fact entirely
absent, no seizure memo or ownership record of any kind being on
                                                     CRLA No. 5731 of 2021
                             34


the file. It is also relevant that the victim named the appellant Sunil
specifically in her earliest account, given to the doctor within hours of
her recovery, as one of the two persons involved, consistently with
her later statement recorded under Section 164 Cr.P.C. his
identification accordingly does not rest solely on her later statements
or on PW-1's and PW-2's evidence of prior acquaintance but is
corroborated by a contemporaneous identification made at the first
opportunity as well.

49. The FIR's timing remains an unexplained discrepancy rather than
a resolved one. The occurrence is placed at about 01:00 a.m. on
19.11.2018 and the FIR was registered at 10:22 a.m. the same day,
while PW-1 and PW-2 state the written report was prepared at about
5-6 a.m. Neither the case diary nor the chik register makes any
mention of that time; both are silent on it and record only the 10:22
a.m. registration, so the interval cannot be explained from the
documentary record and rests entirely on the oral estimate of PW-1
and PW-2. Nor has it yet been established whether the victim was
recovered from the appellant's direct physical custody or was merely
found in or near the vehicle, a distinction material both to Sections
363/366 and to the defence version that the appellant was only the
driver and one that requires resolution from the arrest memo and the
Investigating Officer's evidence rather than the oral and inconsistent
accounts of PW-1 and PW-2 on this point.

50. The victim was examined on 19.11.2018 at 03:45 p.m., the same
day as the occurrence and her recovery that morning, only a few
hours later. Her statement to the doctor is therefore not merely the
earliest formal account on record, preceding both her statement
under Section 164 Cr.P.C. and her deposition at trial but was
recorded before there was any apparent opportunity for tutoring or
embellishment, which is what gives this history its considerable
                                                     CRLA No. 5731 of 2021
                             35


evidentiary weight, in both directions. She told the doctor that two
persons entered, lifted her, that she shouted, that her mouth was
pressed and that she became unconscious until she found herself
near the canal; on being specifically asked about sexual assault, she
stated that she did not know whether rape had been committed. In
this account, she named the appellant Sunil specifically as one of the
two persons who entered and lifted her, the other remaining
unidentified, consistent with her later statement recorded under
Section 164 Cr.P.C. already quoted above. His identification therefore
does not first appear only in that later, formal statement; it is already
present in the earliest, contemporaneous account given to the doctor.
Physical examination disclosed no external injury and no injury to the
urethral meatus, vestibule or perineum; the hymen was old, torn and
healed rather than freshly injured and the primary medical opinion
recorded no signs suggestive of sexual violence. The victim's seized
clothing was sent for forensic examination on 28.11.2018 but the
resulting FSL report was not proved in evidence at all; the
prosecution's forensic case accordingly rests on no more than the
primary medical opinion just noted. PW-7's cross-examination elicited
nothing further beyond what is set out in this paragraph, nothing on
the interval before examination, the genital-examination findings, or
the detection of semen or other forensic material.

51. On the question of removal, this history substantially corroborates
the broad account given elsewhere, two persons, being lifted,
shouting, the mouth being pressed, unconsciousness, and regaining
consciousness near the canal, and thereby furnishes independent
circumstantial support for Sections 363/366, quite apart from what
PW-1 can prove. That support extends to the identity of the appellant
as well as to the fact and manner of the removal, since the victim
named Sunil specifically even in this, her earliest account,
                                                        CRLA No. 5731 of 2021
                              36


consistently with her later Section 164 Cr.P.C. statement naming him
in the same terms as one of the two persons who entered the house,
the   other   remaining   unidentified.     The   identification    of   Sunil
accordingly does not rest on her later statements alone, or merely on
PW-1's and PW-2's evidence that she already knew him as the
school-vehicle driver, it is corroborated by a contemporaneous
identification made at the first opportunity as well.

52. On the question of rape, however, the position is materially
different, and more favourable to the appellant than a simply negative
medical report would be. It is well settled that the absence of injury
does not by itself disprove rape and that medical evidence is
ordinarily corroborative rather than indispensable, a reliable victim's
testimony being capable of sustaining a conviction on its own. This,
however, is not a case of merely negative findings: the victim's own
contemporaneous       statement,    given    at   the    earliest    medical
opportunity, does not allege rape at all, she expressly stated that she
did not know whether it had occurred. This is not an isolated feature
of the medical history alone: PW-8, the Investigating Officer, states
that the victim, in the statement she made to him, likewise did not
mention that she had been sexually assaulted, so that two
independent witnesses to two separate, and both early, accounts, the
doctor and the Investigating Officer, concur that the victim's earliest
versions did not include an allegation of rape. Read with the absence
of external, urethral, vestibular or perineal injury, the old and healed
state of the hymen, and the opinion of no signs of sexual violence,
the medical evidence furnishes no corroboration of recent sexual
assault. The old, healed hymen, by itself, proves nothing as to
intercourse on the date of occurrence or as to who might have been
responsible. If PW-3 subsequently gives a categorical allegation of
rape at trial, the discrepancy between that allegation and this
                                                      CRLA No. 5731 of 2021
                              37


contemporaneous history is a circumstance the judgment must
confront and explain, and not one that can be passed over. The
absence of any proved FSL report compounds this difficulty:
whatever forensic material was collected from the victim's clothing
and sent for examination on 28.11.2018 has not been brought before
the Court in the form of a proved report, so no scientific corroboration,
one way or the other, is presently available to test her account.

53. The victim's account did not remain static across the record, and
the divergence is not confined to the question of rape. What she told
the doctor on 19.11.2018, that she did not know whether rape had
been committed, is corroborated by her statement to the Investigating
Officer, PW-8, on the same day, in which she likewise did not
mention having been sexually assaulted; both are stated to differ from
what she subsequently stated under Section 164 Cr.P.C. before the
Magistrate on 01.12.2018, and her deposition before the trial court is
stated to differ again from all three. The divergence extends well
beyond that single point: the date of occurrence itself, 18.11.2018 in
her Section 164 Cr.P.C. statement against 19.11.2018 at trial; her
own date of birth, 02.11.2005 against 15.03.2005; whether her cries
brought her family to her aid, yes under Section 164 Cr.P.C., "no one
came from the house" at trial. These accounts, to the doctor, to the
Investigating Officer, to the Magistrate, and at trial, require to be set
out and compared side by side, stage by stage, rather than the trial
testimony being read in isolation from what preceded it.

54. A reading of the trial court's judgment itself shows that these
discrepancies, going as they do to the date of occurrence, the
genesis of the alleged pursuit, and the occurrence of the sexual
assault itself, and not to peripheral detail, were not noticed or dealt
with at all. A failure to advert to material inconsistencies of this order
in the successive statements of the prosecutrix is not something this
                                                      CRLA No. 5731 of 2021
                              38


Court, sitting in appeal, can pass over. The trial court's finding cannot,
in these circumstances, be treated as one reached after a proper
appreciation of the evidence, and this omission is itself a ground
calling for this Court to reappraise the evidence afresh, on the
kidnapping charges as much as on the sexual offence charges,
independent of what the ultimate view on the victim's credibility
should be.

55. These discrepancies do not stand in isolation, and considered
together they raise a further and distinct possibility that the
prosecution's case does not adequately meet. The informant, PW-1,
himself places the point of recovery at about 2½ kilometres from the
house, yet describes reaching it within about five minutes of the alarm
being raised, a span difficult to reconcile with a spontaneous, on-foot
pursuit by an assembling crowd of villagers over that distance, and
one the investigation has done nothing to verify, no site plan or
recovery memo being available to fix either the distance or the time
actually taken. To this must be added the direct conflict between the
victim's account of having no memory of the assault at all and her
vivid, detailed account of it given in cross-examination; the
unexplained interval between the occurrence, about 1:00 a.m., the
report said to have been written at about 5-6 a.m., and the FIR's
actual registration at 10:22 a.m., an interval of several hours that
neither the case diary nor the chik register accounts for; and the
further, unexplained delay of fifteen to twenty days before PW-2's
own statement under Section 161 Cr.P.C. came to be recorded at all,
notwithstanding that he was available for examination within hours of
the occurrence. Taken cumulatively, an implausible recovery
chronology, a victim who cannot consistently say whether she
remembers the assault or not, an unexplained delay of several hours
before the FIR came to be registered, and a further unexplained
                                                      CRLA No. 5731 of 2021
                              39


delay of over a fortnight before a key witness's own statement was
recorded together raise a real possibility that the victim's account,
however vivid at trial, was the product of deliberation and consultation
in the intervening period rather than of unaided recollection. As the
Supreme Court observed in Thulia Kali v. State of Tamil Nadu,
(1972) 3 SCC 393, delay in lodging the first information report quite
often results in embellishment, which is a creature of afterthought,
since the report loses the advantage of spontaneity and the danger
creeps in of the introduction of a coloured version, an exaggerated
account, or a concocted story as a result of deliberation and
consultation, and delay of this kind must be satisfactorily explained if
it is not to count against the prosecution. No such explanation has
been offered here. This Court does not record a finding that tutoring
did in fact occur, which is not a matter capable of proof one way or
the other on this record; it records only that the possibility cannot be
excluded, and that this further undermines the reliability of the victim's
testimony as the foundation for any of the charges, including the least
demanding of them.

56. Stepping back, the investigation in this case was, on the record
as a whole, a clumsy one: no General Diary entry recording the
handover of the appellant to the local police station; a supurdaginama
proved only through an interested family witness and never verified
by the Investigating Officer or any police paper; a site plan of the
house of abduction never even prepared, so that no question of
proving it could arise, and a site plan of the place of recovery that
was prepared but never proved through the examination of any
witness; no vehicle, seizure memo and no record of the vehicle's
ownership; no documentary proof of the victim's age though school
records could readily have been summoned; an FSL report never
brought on record despite the relevant samples and clothing having
                                                     CRLA No. 5731 of 2021
                             40


been sent for examination as early as 28.11.2018; a scribe of the
tahrir who sheds no light on when it was written; and an unexplained
fortnight's delay before the statement of a key witness, available from
the outset, came to be recorded at all. Each of these omissions was,
on this record, avoidable. That the trial court, confronted with this
entire catalogue of investigative laches, and with the material
discrepancies in the victim's own successive statements addressed
above, which it did not even notice, nevertheless proceeded straight
to a finding of conviction speaks to something more than
inadvertence. It suggests an eagerness to arrive at a finding of guilt
that was not matched by an equal readiness to test the prosecution's
case against its own, readily apparent gaps, precisely the imbalance
that the guarantee of a fair trial exists to prevent, a guarantee this
Court has recognized as requiring even-handedness as between the
prosecution and the defence, and not merely as between the
prosecution and society (Zahira Habibulla H. Sheikh v. State of
Gujarat, (2004) 4 SCC 158). This is not to say that a defective or
negligent investigation by itself entitles an accused to acquittal; it
does not and the remaining evidence must always be weighed on its
own merits. But a trial court that overlooks laches of this order and
magnitude, together with the discrepancies in the principal witnesses'
own accounts, cannot be said to have subjected the prosecution's
case to the scrutiny a criminal trial demands, and its resulting finding
of conviction is entitled to correspondingly diminished weight on this
appeal.

57. The decisive question on the sexual offence charges is whether
PW-3 herself gave a clear, consistent and credible account before the
trial court that the appellant had sexual intercourse with her, and
whether that account was tested in cross-examination against the
history recorded in Exhibit Ka-6 and against her Section 164 Cr.P.C.
                                                       CRLA No. 5731 of 2021
                              41


statement. A discrepancy between an early statement of "I do not
know" and a later categorical allegation does not, by itself, discredit
the later testimony, but it is a material circumstance which the
prosecution must satisfactorily explain, and which the trial court does
not appear to have engaged with at all. If PW-3's testimony is clear,
consistent and inspires confidence, and the discrepancies noted
above are satisfactorily explained on a fresh appraisal by this Court,
the settled principle that the sole testimony of the prosecutrix can
sustain a conviction without medical corroboration would apply, and
the medical evidence would not, by itself, justify acquittal. If, on the
other hand, her testimony discloses material contradictions or
improvements on the occurrence of rape which remain unexplained,
the   contemporaneous      medical      history   becomes    a    powerful
circumstance creating reasonable doubt, and the benefit of that doubt
would go to the appellant on this point, independently of the findings
on the kidnapping charges.

58. It bears added emphasis that the FSL report, the one piece of
scientific evidence capable of independently confirming or dispelling
the allegation of penetrative assault, the relevant samples and
clothing having been sent for examination as early as 28.11.2018,
has not been proved in evidence at all. Its absence does not
affirmatively disprove the allegation, but it does mean that the
prosecution has not brought before the Court forensic corroboration
that was, in principle, available to it, and the case on this charge must
accordingly be decided on the victim's testimony and the medical
history alone.

59. The finding of minority does not fill this gap. The question whether
the victim was below 18 years of age is distinct from the question
whether penetrative sexual assault occurred, and the former may be
accepted    while   the   latter   is   not   established,   without   any
                                                    CRLA No. 5731 of 2021
                             42


inconsistency.

60. If the victim's minority is accepted and the prosecution's account
of an immediate pursuit and apprehension is made good, the case
would run from a minor girl removed from her house to the appellant
being found transporting her to an immediate pursuit to the appellant
and the victim being apprehended together, a case considerably
stronger than one resting merely on a missing minor later found in the
accused's company. That premise, however, cannot be accepted
merely on the oral say-so of PW-1 and PW-2: the victim's own
evidence that no one came from the house when she cried undercuts
the very genesis of the pursuit as they describe it, and the accounts
of who apprehended the appellant, when, and in what condition the
victim was found are themselves inconsistent. The objective record
affords no escape from this difficulty: the vehicle evidence, the
supurdaginama, the General Diary, and both site plans all fail, for the
reasons already set out, to furnish independent corroboration. This
charge would accordingly have to be assessed on the victim's own
testimony alone, tested against the discrepancies already noted,
rather than on the assumption of an immediate, corroborated
apprehension.

61. This raises squarely the question whether a conviction can be
sustained on the footing that the victim, whether lured or forcibly
taken, was in any event found together with the appellant, even
though the supurdaginama and the General Diary entry recording that
recovery remain unproved, or are otherwise beset with discrepancy.
The principle itself is sound, recovery of a missing minor in the
company of the accused is capable, in the right case, of sustaining a
conviction without any document at all, on credible oral testimony
alone, and can shift the burden under Section 106 of the Evidence
Act onto the accused to explain facts especially within his knowledge.
                                                     CRLA No. 5731 of 2021
                             43


But that principle has two settled qualifications, both fatal to its
application here. First, the circumstance relied upon must itself be
fully and firmly established, not merely probable; it cannot be left in
doubt and still support an inference of guilt (Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116). The last-seen,
or found-together, line of authority makes the same point, the
circumstance does not by itself compel an inference of guilt and there
must be something more connecting the accused with reasonable
certainty (Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715).
Here it is not merely the supurdaginama and the General Diary that
are missing; the oral account of the very fact of recovery is itself
irreconcilable,   four   witnesses   give   four   different   times   of
apprehension, at least three different descriptions of where and how
the victim was found, and the one document that could have fixed the
spot, Exhibit Ka-9, depicts a location inconsistent with all of them.
This is accordingly not a case of strong, consistent oral proof lacking
only its documentary corroboration, it is a case in which the fact, time,
place and manner of the recovery are themselves contested and
unresolved. Second, Section 106 shifts the burden to explain only
once the prosecution has discharged its own primary burden of
establishing the foundational facts; it does not operate to fill a gap in
the prosecution's own case (Shambu Nath Mehra v. State of Ajmer
, 1956 CRILJ 794 , reaffirmed in Anees v. State Govt. of NCT of
Delhi, 2024 SCC OnLine SC 757). Since the very fact of the finding
remains in dispute on the prosecution's own witnesses, there is no
established primary fact for the appellant to be put to explain. Even
taken at its highest, a firmly-established found-together circumstance
would support, at most, Section 363/366 IPC; it says nothing of itself
about whether a penetrative sexual assault in fact occurred, a
separate and independently-required element already found doubtful
on the medical and testimonial evidence. The conviction cannot,
                                                     CRLA No. 5731 of 2021
                             44


therefore, be sustained on the footing that the victim was in any event
found with the appellant.

62. That assessment does not survive scrutiny even on the victim's
own testimony taken alone. PW-1's account places the point of
recovery about 2½ kilometres from the house while describing a
pursuit completed within some five minutes, a chronology the
investigation made no attempt to verify; the victim's own evidence is
internally divided between having no memory of the assault at all and
a vivid, detailed recollection of it and neither the interval of several
hours between the occurrence and the FIR's actual registration nor
the fortnight's delay before PW-2's own statement came to be
recorded has been explained. This combination raises a real
possibility of deliberation and tutoring that the prosecution has done
nothing to dispel. Even as the least demanding of the four charges,
Section 363 IPC cannot presently be said to be established beyond
reasonable doubt, not because any one gap is by itself fatal, but
because the cumulative and unexplained discrepancies leave the
charge without the cogent foundation a conviction requires.

63. A conviction under Section 366 IPC cannot simply follow from
proof of Section 363 IPC. The prosecution must separately establish
the additional statutory ingredient, kidnapping or abduction with the
intent contemplated by Section 366 IPC, such as intent that the victim
be compelled to marry or be forced or seduced into illicit intercourse.
If the prosecution's theory is abduction for sexual exploitation and the
evidence of sexual assault itself becomes doubtful, the requisite
intent must still be established through admissible and reliable
evidence of the surrounding circumstances; it cannot be inferred
merely because Section 363 IPC is made out, nor can an unproved
allegation of rape be used to supply the element of intent.
                                                     CRLA No. 5731 of 2021
                                45


64. The appellant's explanation that he was merely the driver of the
vehicle, and was falsely implicated over a dispute concerning
Rs.6,000/- in outstanding vehicle-rental charges is not by itself
sufficient to raise a reasonable doubt it must be tested against the
objective circumstances of the recovery. If the appellant was
admittedly driving the vehicle and was apprehended together with the
victim at the canal shortly after she disappeared, the explanation
becomes considerably less persuasive. If, on the other hand, the
prosecution is unable to establish that the victim was actually found in
the appellant's vehicle or that he participated in taking her away, the
explanation gains substantial force, which is precisely why the
question of whether recovery was from his physical custody or merely
in or near the vehicle assumes importance.

65. On the charge under Section 363 IPC, the present evidentiary
position is that it is not sustained on the record as it stands. Its
principal support, the alleged immediate pursuit and apprehension,
rests solely on the oral evidence of PW-1 and PW-2 itself internally
inconsistent and contradicted in part by the victim no independent
documentary corroboration exists, there being no General Diary
entry, no police verified handover memo, no proved site plan of either
location and no vehicle seizure memo or ownership record, age itself
rests on oral and medical estimates rather than documentary proof
and none of these gaps has been explained by the prosecution or
addressed by the trial court.

66. On the charge under Section 366 IPC, the position is likewise that
it is not sustained. This charge requires independent proof of the
statutory intent for kidnapping or abduction over and above Section
363 IPC, and since the foundational facts relied upon for Section 363
are themselves not established beyond reasonable doubt, the
additional intent required for Section 366 is equally unproved.
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                             46


67. On the charge under Section 376 IPC, the position is again that it
is not sustained. The contemporaneous medical history is silent on
rape, the physical and pathological examination discloses no
corroborative finding, the FSL report was never proved despite the
seized clothing having been sent for examination on 28.11.2018, and
the victim's own successive accounts diverge on matters going to the
core of the occurrence, divergences the trial court did not address
and the prosecution has not explained.

68. On the charge under Sections 3/4 of the POCSO Act, the position
is not sustained, for the same reasons as Section 376 IPC. Minority is
reasonably established on convergent oral and medical estimates,
but minority alone does not supply the proof of penetrative sexual
assault that these provisions additionally require.

69. The absence of any injury on the victim's person, the absence of
blood staining on her clothes, her own admission that no one from the
house responded to her cries, and the doubt surrounding the medical
and testimonial evidence of sexual assault bear on whether the victim
may, in fact, have been a consenting party rather than a person
forcibly removed and assaulted. It is necessary to be precise about
what effect, if any, such a finding would have in law, since consent
operates differently for the two sets of charges. As to Sections 363
and 366 IPC, if the victim is found to have been a minor on the date
of occurrence her own consent to accompanying the appellant is not
consent in the eyes of law for the purposes of Section 361 IPC as the
section makes the guardian's consent not the minor's, the relevant
enquiry and a minor's willingness to go with the accused does not by
itself take the case out of Section 363 IPC. What the law does
require, independently of the victim's consent, is proof that the
accused played an active part in the taking or enticing of the minor
out of lawful guardianship and mere passive accompaniment by a
                                                     CRLA No. 5731 of 2021
                             47


willing minor without some inducement, blandishment or active
persuasion originating with the accused, does not amount to taking
within the meaning of the section. (S. Varadarajan v. State of
Madras, AIR 1965 SC 942). The question, therefore, is not whether
the victim consented, but whether the prosecution has proved an
active role on the part of the appellant in taking away the victim out of
the custody of her lawful guardian? As to Section 376 IPC and
Sections 3/4 of the POCSO Act, if the victim is a minor, her consent,
even if it existed in fact, is wholly immaterial in law, since a minor is
treated in law as incapable of giving valid consent to a sexual act and
the offence under the POCSO Act is made out, if the other
ingredients are proved, regardless of any consent the minor may in
fact have given. The finding of reasonable doubt accordingly, does
not and could not rest on any suggestion that the victim consented; it
rests instead on the prosecution's failure to establish beyond
reasonable doubt, that any penetrative sexual act took place at all. In
short, even on the hypothesis most favourable to the appellant, that
the victim did in fact accompany him willingly, that hypothesis does
not itself supply a defence to either charge; the appellant's
entitlement to the benefit of the doubt recorded in this judgment rests
squarely on the evidentiary gaps and contradictions already
identified, not on any finding, express or implied, regarding the
victim's consent.

70. As per the evidence adduced by prosecution, the charges do not
admit of a single composite answer and must be assessed
separately. As to Section 363 IPC, the case is potentially credible but
its principal support, an immediate pursuit and apprehension rests
substantially on the oral evidence of PW-1 and PW-2, which is itself
internally inconsistent and contradicted in part by the victim's own
testimony that no one came from the house when she cried. A
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                             48


supurdaginama recording the dial-100 police's handover of the
appellant to the local police station has been exhibited as Ka-2, but it
has been proved only through PW-2 without verification by PW-8 or
any other police witness or police paper, so it cannot supply
corroboration of the prosecution's account independent of PW-2
himself; and the General Diary entry that would ordinarily also record
the same event, which PW-8 confirms is the ordinary procedure does
not exist on the record and its absence remains unexplained. Neither
of the two site plans supplies any further corroboration: the
investigation never drew up any site plan of the house of abduction at
all, while the only site plan actually prepared and filed, Exhibit Ka-9,
the site plan of the place of recovery of the victim and detention of the
appellant was for its part never proved through the examination of
any independent witness though available throughout from pursuing
the accused to recovery of the victim to lodging of the FIR. No vehicle
seizure memo was ever prepared by the police and no record of the
vehicle's ownership exists on the file either, so the vehicle evidence
rests entirely on the oral say-so of PW-2 and the victim without any
documentary support of any kind. Whether this charge is ultimately
sustainable therefore depends on the victim's own testimony alone,
tested against the discrepancies already noted rather than on the
family witnesses' accounts, Exhibit Ka-2 either unproved site plan or
any document establishing the vehicle's ownership. As to Section 366
IPC, the statutory intent requires separate consideration and cannot
simply follow a finding on Section 363 IPC. As to Section 376 IPC
and Sections 3/4 of the POCSO Act, the prosecution faces a
substantial difficulty: the contemporaneous medical history is silent on
rape and expressly records that the victim did not know whether it
had occurred, the physical and pathological examination discloses no
sign of recent sexual violence, no FSL report was ever proved to
supply scientific corroboration one way or the other despite the
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                             49


relevant samples and clothing having been sent for examination on
28.11.2018, and the victim's own successive accounts to the doctor
under Section 164 Cr.P.C., and at trial diverge on matters going to
the core of the occurrence, a divergence the trial court does not
appear to have addressed. For a conviction on this count to stand,
the victim's own testimony, tested against all of the foregoing, would
have to be sufficiently cogent and trustworthy to explain away these
circumstances; for the reasons that follow, it does not do so, and no
other material on the record explains them either. Although the
prosecution has succeeded in establishing at least prima facie, that
the victim was a minor. However, the evidence regarding the alleged
sexual assault requires independent scrutiny. The contemporaneous
medical history does not disclose rape, the victim herself stated that
she did not know whether rape had been committed. The physical
examination disclosed no external or genital injury, the hymen was
old, torn and healed, and the pathological examination disclosed no
finding suggestive of sexual violence. In the absence of other reliable
evidence establishing penetrative sexual assault, the prosecution
cannot derive proof of rape merely from the minority of the victim or
her alleged kidnapping.

71. On perusal of victim's entire testimony, this Court finds that it
does not explain and the prosecution has at no stage explained the
discrepancy between her account and the contemporaneous medical
history or the discrepancies within her own successive statements to
the doctor, to the Investigating Officer under Section 164 Cr.P.C., and
at trial. Her testimony discloses material contradictions extending
beyond the fact of rape and the very genesis of the alleged pursuit,
none of which the trial court noticed or addressed. On this finding, the
appellant is entitled to the benefit of doubt on the charges under
Section 376 IPC and Sections 3/4 of the POCSO Act.
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                             50


72. The finding on Section 363 IPC stands on no firmer footing. No
General Diary entry exists to independently corroborate the
immediate handover of the appellant to the local police station; the
supurdaginama exhibited as Ka-2 is proved only through PW-2, the
victim's own uncle and verified by neither the Investigating Officer nor
any police paper, the investigation never drew up any site plan of the
house of abduction, a lapse of its own making rather than a mere
failure of proof notwithstanding that the victim's own account of her
removal over a broken rear wall, in the dark without waking her
sisters sleeping beside her or her grandparents in the verandah,
plainly called for such a plan to have been made; the site plan of the
place of recovery though prepared and filed in original, was for its
part never proved through any independent witness, and, on its face,
depicts only the embankment of the Rohta canal with no jungle
shown and no marking of the spot at which the victim is said to have
lain sitting uneasily even with PW-4's and PW-5's own accounts of
recovery from an empty field in the jungle, no vehicle seizure memo
was ever prepared by the police at all and no record of the vehicle's
ownership exists on the file either; and the interval between PW-1's
account of the report being written at about 5-6 a.m. and the FIR's
registration at 10:22 a.m. finds no support in either the case diary or
the chik register. None of these gaps has been explained by the
prosecution at any stage, and the trial court's judgment does not
address any of them. The charge accordingly rests in the end on the
oral testimony of PW-1 and PW-2 alone, testimony that is itself
materially inconsistent both internally and against the victim's own
account, without the documentary corroboration that was readily
available and plainly called for and without any explanation for its
absence. Even confining the inquiry to Section 363 IPC alone, the
least demanding of the four charges and the only one that could
conceivably survive if the sexual offence counts were to fall, the same
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                              51


defect recurs and is if anything reinforced: PW-1's own account
places the point of recovery some 2½ kilometres from the house
while describing a pursuit completed within about five minutes, a
chronology the investigation made no attempt to verify; the victim's
own evidence is internally divided between having no memory of the
assault at all and a vivid, detailed recollection of it; and the gap of
several hours between the occurrence the report said to have been
written at about 5-6 a.m., and the FIR's actual registration at 10:22
a.m. remains unexplained on the documentary record. This
combination, an unverified recovery chronology, an internally divided
account of memory and an unexplained delay of the kind addressed
in Thulia Kali v. State of Tamil Nadu, (1972) 3 SCC 393, raises a
real possibility of deliberation and tutoring in the intervening period, a
possibility the prosecution has done nothing to dispel. Section 363
IPC accordingly fails for the same reason as the other charges: not
because any single gap is by itself fatal, but because the cumulative,
unexplained discrepancies leave the Court unable to hold that the
prosecution has proved its case beyond reasonable doubt.

73. It bears emphasis in reaching this conclusion, that the burden of
proving the guilt of the accused beyond reasonable doubt rests at all
times upon the prosecution and that this burden does not shift to the
accused merely because the discrepancies noted above remain
unexplained. As the Supreme Court held in Kali Ram v. State of
Himachal Pradesh, (1973) 2 SCC 808, the burden of proving the
guilt of the accused is upon the prosecution and unless it relieves
itself of that burden the courts cannot record a finding of the guilt of
the accused; where a reasonable doubt arises on the evidence, the
benefit of it cannot be withheld from the accused. The reverse burden
and presumption available to the prosecution under Section 29 of the
POCSO Act do not alter this starting point that presumption is
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                              52


activated only once the prosecution has first proved the foundational
facts constituting the offence, it does not itself supply proof of those
foundational facts, and an accused need only raise a reasonable
doubt about them. The Supreme Court applied the same approach on
materially comparable facts, an unexplained delay in the lodging of
the FIR and material inconsistencies in the child victim's own
successive statements, in Debraj Dutta v. State of West Bengal,
2026 LiveLaw (SC) 401, decided 07.04.2026, setting aside the
conviction and restoring the trial court's acquittal, and holding that the
presumption under Section 29 cannot rest on the strength of a
child's testimony unless that testimony is first found to be fully
credible and trustworthy. On the findings recorded above, the
foundational facts of the prosecution's case, the manner of the
victim's removal, the continuity of the pursuit said to have led to the
appellant's   apprehension,    and   the   documentary     corroboration
ordinarily to be expected of each, have not been established free of
unexplained discrepancy, and the prosecution has accordingly not
discharged the burden that lay upon it from the outset, the enquiry in
other words remains whether the prosecution has proved its case, not
whether the appellant has disproved it.

74. On the evidence and discrepancies discussed at length above
none of which has been explained by the prosecution or addressed
by the trial court, this Court holds that the conviction cannot be
sustained as it stands on the record. This finding applies to the
charge under Section 376 IPC and Sections 3/4 of the POCSO Act,
for the reasons set out above to the charge under Section 363 IPC,
for the reasons set out above and equally to the charge under
Section 366 IPC, which requires independent proof of a statutory
intent over and above the facts relied upon for Section 363 IPC and
cannot stand once even those foundational facts are themselves
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                             53


unproved beyond reasonable doubt. No documentary or other
material remains outstanding on the record the evidentiary record is
complete and the appeal falls to be allowed on that complete record.

75. Every acquittal does not furnish a foundation for a claim against
the State. The jurisprudence on this point supports a distinction
between three situations. A prosecution may fail because the
evidence does not cross the threshold of proof beyond reasonable
doubt that results in acquittal but does not by itself establish that the
accused was falsely implicated. The prosecution may on the other
hand be shown on a cumulative assessment of the entire record to be
fundamentally unreliable, the evidence demonstrably false, mutually
destructive, inherently improbable, or contradicted by objective
material, with the investigation having materially contributed to the
wrongful prosecution so as to justify what may properly be described
as a clean acquittal founded on wrongful implication rather than an
acquittal resting merely on the benefit of the doubt. Where such
wrongful implication is coupled with substantial or prolonged
deprivation of liberty attributable to State action, the question may
move beyond criminal adjudication into the constitutional domain of
Article 21. This Court considers it necessary to identify before parting
with this appeal where the present case falls on that spectrum.

76. The Supreme Court's observations para 28 in V. Senthil Balaji v.
Deputy Director, Directorate of Enforcement, 2024 INSC 739,
supply the starting point. The Court observed that there may be
cases where an accused secures a clean acquittal after very long
incarceration, and that crucial years of the accused's life are in such
circumstances lost, it observed that in an appropriate case this may
amount to a violation of Article 21 and give rise to a claim for
compensation. The Court, however, was deliberate in qualifying what
it meant by a clean acquittal expressly excluding cases where
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                              54


witnesses have merely turned hostile or where there is a bona fide
defective investigation. The proposition is accordingly not that
acquittal coupled with incarceration, without more, gives rise to
compensation; it is that a clean acquittal, coupled with substantial
wrongful deprivation of liberty and circumstances establishing a
constitutional wrong may do so, a materially higher threshold.

77. The subsequent decision in Kattavellai @ Devakar v. State of
Tamil Nadu, 2025 INSC 845, decided on 15.07.2025, carries the
discussion further and is of particular relevance here. The Supreme
Court set aside a conviction and death sentence on finding that the
circumstances relied upon by the prosecution had not been
conclusively established and that the chain of circumstances did not
point unerringly to the guilt of the accused, after considering serious
investigative deficiencies going to identification, the test identification
parade, the examination of material witnesses, and the chain of
custody and handling of DNA evidence. Adverting to V. Senthil Balaji,
the Court noted that the case before it was itself one where the
accused had obtained a clean acquittal after years of incarceration
and it went on to observe on the desirability of a statutory
compensation mechanism for such cases, it was however, careful not
to hold that the occasion for finally and conclusively determining a
constitutional claim for compensation had arrived on the facts before
it. That restraint is one this Court considers it appropriate to preserve
in dealing with the present appeal.

78. A finding that the investigation was defective does not without
more warrant a finding that the accused was falsely implicated. The
first may follow from negligence, incompetence or a mere failure to
follow proper procedure; the second requires the Court to be satisfied
on the entire evidentiary record that the prosecution case was itself
false or fundamentally unreliable, and that the accused was wrongly
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                               55


made to face a criminal trial on that basis. This distinction is
consistent with the qualification in V. Senthil Balaji itself which
excluded bona fide defective investigation from the concept of a clean
acquittal. It would accordingly not be right to reason that, because the
Investigating Officer failed to produce the General Diary entry or
never prepared a site plan of the house of abduction, the appellant
was therefore falsely implicated. The more accurate statement is that
these investigative omissions assume significance because they
concern objectively verifiable circumstances on which the prosecution
itself relies as material links in its case; considered together with the
mutually inconsistent accounts of the prosecution witnesses and the
other circumstances discussed in this judgment they become relevant
not merely as lapses in investigation but in assessing whether the
prosecution version itself is reliable.

79. Assessed against that framework, the record in this case
discloses more than an ordinary case of insufficiency of proof. The
prosecution witnesses do not merely differ on peripheral matters, they
are materially at odds on how the victim was removed whether
anyone saw her being taken away, who raised the alarm and whether
the family in fact responded to it, who pursued and apprehended the
appellant, where and in what condition the victim was found, when
she returned home, and when the FIR was actually lodged,
divergences going to the very genesis and continuity of the
prosecution's case. The objective material that could have resolved
these divergences was either never brought into existence or was
never proved: no General Diary entry exists to record the Dial-100
police's handover of the appellant; the supurdaginama, Ka-2, is
proved only through an interested family witness and unverified by
any police officer or paper, the site plan of the house of abduction
was never even prepared, and the site plan of the place of recovery,
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                             56


Ka-9, though prepared was never proved; no vehicle seizure memo
or ownership record exists and the Dial-100 personnel who are said
to have attended the scene and apprehended the appellant were
never examined and the only named persons examined beyond PW-
1 and PW-2, PW-4 and PW-5, are themselves the informant's
nephews who describe the victim as their niece through a cousin so
that no independent villager among those named has been examined
at all. Nor, closer to the victim herself, have Sapna and Shivani, her
sisters, who were sleeping in the very same room and were on her
own account the persons best placed to say whether any disturbance
occurred there that night, ever been questioned by the Investigating
Officer or even named in the charge-sheet's list of witnesses, a
further unexplained gap in the investigation and one closer to the
primary occurrence than the pursuit and recovery witnesses already
discussed, and one that attracts the adverse inference available
under Section 114 illustration (g) of the Evidence Act for withholding
the best available evidence on the point. Read together with the
unexplained delays in the lodging of the FIR and in the recording of
PW-2's own statement, these circumstances raise a real, if unproved,
possibility that the prosecution's account was shaped by deliberation
rather than by unaided recollection, and the trial court's failure to
notice any of this compounds the difficulty.

80. One qualification, however, must be stated with equal candour,
since the distinction between absence of corroboration and positive
incompatibility matters a great deal at this point. The medical
evidence in this case does not affirmatively contradict the
prosecution's account of a sexual assault; it is silent and non-
corroborative, the victim's own contemporaneous history being
equivocal rather than exculpatory, and it stops short of demonstrating
that the alleged occurrence could not have happened in the manner
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                              57


asserted. Nor is there anything on the record, such as a
demonstrated alibi or scientific material affirmatively excluding the
appellant that independently establishes his innocence rather than
merely leaving the prosecution's case unproved. The identification of
the appellant, moreover, is not itself in serious doubt: the victim
named him consistently from her earliest statement to PW-7 onward.
On a fair and complete view of the record therefore, while the
cumulative circumstances go well beyond an ordinary failure of proof
and reflect materially on the reliability of the prosecution's account,
this Court is not in a position in the present appeal to record the
further and more serious finding that the appellant was affirmatively
and demonstrably falsely implicated. That question and dependent
upon it any claim to compensation under Article 21 founded on the
deprivation of liberty the appellant may have suffered by reason of
this prosecution is accordingly left open to be pursued, if the
appellant is so advised, in appropriate proceedings, where the
findings recorded in this judgment concerning the conduct of the
investigation and the reliability of the prosecution's evidence would be
available to be considered. Nothing in this judgment should be
understood either to foreclose or to prejudge that question, this Court
following in that respect the same restraint that the Supreme Court
itself observed in Kattavellai.

81. This Court has consciously refrained from describing the
prosecution in this case as malicious, that expression carrying a
connotation of subjective bad faith that the present record does not
support one way or the other and that this appeal has not required it
to examine. The findings recorded above are confined to the reliability
of the evidence and the adequacy of the investigation, and are
expressed, accordingly, in terms of wrongful implication and an
investigation falling short of the standard a fair trial requires, rather
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                                    than in terms of malice.

                                                                        ORDER

                                    82. The appeal is allowed. The judgment of conviction under
                                    Sections 363, 366, 376 IPC and Sections ¾ POCSO Act and
                                    sentence under Sections 363, 366, 376 IPC dated 07.10.2021
                                    passed by the Special Judge (POCSO Act)/Additional Sessions
                                    Judge, Court No.29, Agra, in Special Trial No.636/2019 (State of U.P.
                                    v. Sunil), arising out of Case Crime No.1278/2018, Police Station
                                    Tajganj, District Agra, is set aside. The appellant is acquitted of all the
                                    said charges.

                                    83. The appellant is in custody in the aforesaid appeal arising out of
                                    Special Trial No.636/2019 (State of U.P. vs. Sunil) arising out of Case
                                    Crime No.1278/2018 registered at Police Station Tajganj, District
                                    Agra, under Sections 363, 366 and 376 of the Indian Penal Code and
                                    Sections 3/4 of the Protection of Children from Sexual Offences Act,
                                    2012 after his conviction. If he is not required in any other case, he
                                    shall be released forthwith.

                                    84. A certified copy of this judgment alongwith lower court record be
                                    sent to the court below for information and compliance, in accordance
                                    with the applicable Rules.

                                    September 11, 2026
                                    Zafar
                                                                                         (Achal Sachdev,J.)




Digitally signed by :-
MOHAMMAD ZAFAR ANSARI
High Court of Judicature at Allahabad