JUDGMENT : 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 24.07.2002, passed by 3rd Additional Sessions Judge, Raipur, in Sessions Trial No.2/2002, whereby the appellant-accused has been convicted for offence punishable under Section 376(1) of IPC and sentenced to R.I. for 7 years with fine of Rs.5,000/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for six months. 2. Briefly facts of the case is that the 12 year old minor (PW-8) lived with her parents and siblings in village Silyari, district Raipur. In the same neighborhood, the appellant Raju alias Rajkumar also lived with his family and a medicine shop is situated in front of his house. On the date of incident i.e. 12/10/2001 in the evening, when the prosecutrix went to the shop of the appellant to buy refills, then the appellant by wheedling the prosecutrix and he took her to the house and had sexual intercourse with her. On the next day i.e. 13/10/2001, the appellant again took inside his house and had sexual intercourse with her. The victim/prosecutrix did not tell the incident to anyone out of fear. When she was feeling ill on 19/10/2001, then she narrated the incident to her mother Pramila Soni (PW-1). Thereafter, on 20/10/2001, the prosecutrix along with her father lodged a report at Chowki-Silayari, police station-Dharsiwa, on which FIR vide Ex.P-7 was registered and after taking the consent of the prosecutrix, her medical examination was done. The inner garments of both the parties were seized and examined by a doctor. Nazri naksha(spot map) Ex.P-5 was prepared. During the investigation of the prosecution, a slide of the vagina of prosecutrix was sent for chemical testing, but no chemical test report has been exhibited on record. 3. The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 15 documents. No witness has been examined in defense by the appellant. After hearing both the parties, the trial court passed the decision of conviction and sentence in question after considering the statement of the prosecutrix and other evidence. 4. Learned counsel for the appellant submits that the incident occurred in the year 2001. No witness has been examined in defense by the appellant. After hearing both the parties, the trial court passed the decision of conviction and sentence in question after considering the statement of the prosecutrix and other evidence. 4. Learned counsel for the appellant submits that the incident occurred in the year 2001. Before the amendment of Section 375 of the Indian Penal Code in 2013, the legal position was that if the victim/prosecutrix was below 16 years of age, then sexual intercourse with her consent also came under the category of crime. In this case, the prosecution has failed to prove that the accused was under 16 years of age at the time of the incident. There is lack of clear and reliable evidence by the prosecution regarding the age of victim/prosecutrix. The incident was reported with a delay of about 8 days for which, no satisfactory explanation has been given. The prosecutrix, despite living in the neighborhood, has not told the incident to anyone, whereas she has said that she would go to the house of the appellant for two consecutive days. In the FIR, the prosecution has stated that the incident occurred in the room of the house, but in the statement before the court, she stated that the incident occurred at the top of the stairs leading from outside the shop. Thus, there is a complete contradiction regarding the place of occurrence. The father of the accused had a dispute with the father of the victim/prosecutrix regarding the transactions. The evidence of the sole prosecutrix is doubtful and is not verified by the medical report. Thus, there are many flaws in the evidence of the prosecutrix due to which the trial court committed an error in convicting the appellant by relying on the statement of the sole prosecutrix. The conviction and sentence in question are not justified and valid in the light of law. Therefore, by accepting the appeal, the decision of conviction and sentence in question may be set aside. In support of her argument, she cited the judgments as under:- 1. Naravan v. State of Rajasthan (2007) 6 SCC 465 . 2. Dola and Ors. v. The State of Odisha (2018) 18 SCC 695. 3. Krishna Kumar Malik v. State of Haryana 2011 (7) SCC 130 . 4. State of Punjab v. Gurmit Singh (1996) 2 SCC 384 . 5. Naravan v. State of Rajasthan (2007) 6 SCC 465 . 2. Dola and Ors. v. The State of Odisha (2018) 18 SCC 695. 3. Krishna Kumar Malik v. State of Haryana 2011 (7) SCC 130 . 4. State of Punjab v. Gurmit Singh (1996) 2 SCC 384 . 5. Sadashiv Ramrao Hadbe v. State of Maharashtra and Anr. (2006) 10 SCC 92 . 6. Ramdas and Ors. v. State of Maharashtra (2007) 2 SCC 170 . 5. On the other hand, the learned counsel for the State submits that the conclusion given by the trial court regarding the conviction and sentence of the appellant is based on sufficient and reliable evidence and there is no scope for doubt. Therefore, the contention made by the appellant is not acceptable, hence, the appeal may be dismissed. 6. Heard learned counsel for the parties and perused the record. 7. The decision of conviction and sentence of the appellant is basically based on the evidence of the prosecutrix (PW-8). There is no FSL report on record regarding the seized under-wear of either side, hence the seized under-wear could not be of any use in favor of the prosecution. It is also clear that the report of incident vide Ex.P-7 was written after about 8 days, regarding which, there is no satisfactory explanation from the prosecution available on record. Dr. S. Phooljhale (PW-11) has stated that only after the report, he conducted the medical examination of the prosecutrix on 22/10/2001 and submitted his report vide Ex.P-14, according to which, no external or internal injury was found on the prosecutrix. Her hymen was torn and the surface was full, which a finger could enter. Mild pain was present at the time of examination and the bleeding was lightening, possibly due to menstruation. According to Dr. S. Phooljhele, no definitive opinion can be given regarding sexual intercourse. Thus, there is no further evidence on record to support the statement of the prosecutrix. 8. In so far as, there is evidence regarding the accused being under 16 years of age at the time of the incident? In this case, the fact that no ossification test has been conducted to determine the age of the prosecutrix is significant. There is no documentary evidence available regarding her date of birth. 8. In so far as, there is evidence regarding the accused being under 16 years of age at the time of the incident? In this case, the fact that no ossification test has been conducted to determine the age of the prosecutrix is significant. There is no documentary evidence available regarding her date of birth. The investigator has asked for his school's marksheet (Ex.P-6), but the original marksheet is not presented in the record and it has not been produced even during the evidence. Thus, no documentary evidence regarding the date of birth has been verified in the records. The prosecutrix herself has said that her date of birth is 10/05/1989 but the clear and prominent evidence regarding the date of birth can be either the statement of the parents or documentary evidence and mother Pramila Soni (PW-1) and father Khubiram Soni. (PW-2) has been unable to tell the date of birth of victim/prosecutrix. Thus, there is no evidence of any definitive nature regarding the date of birth of victim/prosecutrix in the record. 9. In the above situation, the legal position has to be considered as to how reliable the sole statement of the prosecutrix is in a rape case. 10. In the matter of Dola and ors. V. State of Odisha (supra), the hon’ble Supreme Court has held that:- “(i) the Trial Court as well as the High Court had convicted the appellants without considering the aforementioned factors in their proper perspective. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the informant/ victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the Doctor’s evidence do not specify whether there were any signs of forcible sexual intercourse. It seems that the First Information Report was lodged with false allegations to extract revenge from the appellants, who had uncovered the theft of forest produce by the informant and her husband. The High Court had brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court had proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence. The medical evidence does not support the case of the prosecution relating to the offence of rape. The High Court had proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence. The medical evidence does not support the case of the prosecution relating to the offence of rape. Having regard to the totality of the material on record and on facts and circumstances of this case, it was not possible for this Court to agree with the concurrent conclusions reached by the courts below. 11. In the matter of Krishan Kumar Malik V. State of Haryana (supra) in respect of the offence of gang rape under Section 376(2) (g), IPC, it has been held as under:- “31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences.” 12. In the case of State of Punjab Vs. Gurmit Singh (supra) held as under :- “If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated I the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 13. Similarly, in the matter of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and another (supra) held as under:- “It is true that in a rape case the Accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. Similarly, in the matter of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and another (supra) held as under:- “It is true that in a rape case the Accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix.” 14. Similarly, in the case of Ramdas and others Vs. State of Maharashtra (supra) held as under:- “Conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity.” 15. If we consider the case pending before this Court in the light of the concept given by the Hon’ble Supreme Court in this matter, it becomes clear that the prosecutrix herself has made different statements regarding the place of incident. In the FIR, the incident is said to have taken place in the room, whereas in the statement before the Court, she stated that the incident is said to have taken place at the top of the stair leading to the roof outside the shop. The prosecutrix herself has asked to go to the shop of the appellant when he called and by her own consent. She has stated that she went to the shop of the appellant not only once but twice, on the call of the appellant and she did not even inform her family members/parents. According to the statement, she used to go to her elder father's house to watch TV, but from there she used to secretly go to the shop of the appellant without informing his family members and when she come back to her home from the appellant's place, she did not inform anyone about the incident. The incident is said to have taken place at night. It does not seem that anyone saw her, while she was going and coming back to her home. The incident is said to have taken place at night. It does not seem that anyone saw her, while she was going and coming back to her home. It is not established by the evidence that the victim/prosecutrix was a minor under the age of 16 years at the time of incident. When she called by the appellant, she used to go secretly without informing to anyone, therefore, it seems that the victim/prosecutrix gone to the house of the appellant by her own consent. Medical evidence also does not confirm that she had forced by the appellant to sexual intercourse at the time of the alleged incident. Chemical test report is also not on record. The incident is not confirmed even by medical evidence. For all these reasons, the statement of the sole prosecutrix cannot be believed beyond reasonable doubt and it is not safe to base the conviction on the sole basis of her statement which has many contradictions and is not even supported by any other evidence. In the above situation, the verdict of conviction and sentence given by the trial court does not deserve to be sustained but the appellant is entitled for benefit of doubt. 16. Accordingly, the appeal is allowed. The judgment of conviction and sentence in question is set-aside. By giving benefit of doubt, the appellant is acquitted of the offense of Section-376(1) of the IPC. The appellant is reported to be on bail. Under Section-437/A of the Code of Criminal Procedure, his bail-bond shall be effective for another 6 months. If there is no need to appear in the Superior Court, then his bail-bond will be considered free. 17. The record of the trial court along with the copy of the decision be sent back immediately for necessary action.