ORDER : MAHENDAR KUMAR GOYAL, J. 1. This criminal appeal is directed against the judgement dated 13.07.2020 passed by the learned Special Judge, Protection of Children From Sexual Offences Act, 2012, No-3, Jaipur Metropolitan-II (for brevity, ‘learned trial Court’) in Sessions Case No.31/2019 whereby, while acquitting the accused appellant (for brevity, ‘appellant’) under Section 13 /14 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘Act of 2012’) as well as under Sections 67E and 67A of the Information Technology Act, 2000 (for short, ‘Act of 2000’), he has been convicted under Sections 376 (2)(n) and 506 IPC as also under Section 5 (l)/6 of the Act of 2012 and sentenced under Section 376 (2)(n) in view of Section 42 of the Act of 2012 as well as under Section 5 06 as under:- Section 376 (2)(n) IPC :- Rigorous Imprisonment for life with fine of Rs.1,00,000/- and in default; to further undergo 1 year rigorous imprisonment. Section 506 IPC :- 5 Years Rigorous imprisonment with fine of Rs.50,000/-, in default; to further undergo 6 months rigorous imprisonment. Sentences to run concurrently. 2. The relevant facts in brief are that on the written report dated 05.11.2012 (Ex.P1) lodged by the prosecutrix ‘M’ (identity concealed), an FIR No.666/2014 dated 06.11.2014 came to be lodged at Police Station Kanota, Jaipur Rural for the offence under Sections 376 , 354?, 354? and 506 of IPC , Section 4 of the Act of 2012 and Sections 66? and 67? of the Act of 2000. It was alleged that the appellant used to harass her and subjected her to ‘wrongful act’ 10-12 times. After investigation, charge-sheet was filed under (1)(2)(h)(m), 354?, 354?, and 506 of , Sections 4 , 5(l)/6, 7/8, 9(l)/10 and 11/12 of the Act of 2012 and Sections 66? and 67? of the Act of 2000. Charges were framed against the appellant under (2)(n) and 506 of , Sections 5 (l)/6 and 13/14 of the Act of 2012 and Sections 66-E/67-A of the Act of 2000 whereupon, he pleaded not guilty and demanded trial. After trial, the appellant has been convicted and sentenced as stated hereinabove. 3. and 67? of the Act of 2000. Charges were framed against the appellant under (2)(n) and 506 of , Sections 5 (l)/6 and 13/14 of the Act of 2012 and Sections 66-E/67-A of the Act of 2000 whereupon, he pleaded not guilty and demanded trial. After trial, the appellant has been convicted and sentenced as stated hereinabove. 3. Assailing the judgement impugned dated 13.07.2020, learned counsel for the appellant-Shri R.B. Sharma Ganthola submits that the prosecution has not been able to establish that the date of birth of the prosecutrix was 17.07.1998; rather, she was major on the date of alleged incident, i.e., 10.01.2014. Elaborating his submission and inviting attention of this Court towards the Court statement of Shri Babulal (PW 2) and Smt. Seema Kumari (PW 4)-father and mother of the prosecutrix respectively, he submits that they have admitted that the date of birth of the prosecutrix mentioned in her school certificate as 17.07.1998 was out of guess work and there was no reliable material in support thereof. Learned counsel further submits that as per the prosecution case, the prosecutrix was admitted in Class 1 in a Government School where she studied upto Class 5 th -6 th but, no document was produced by the prosecution to show her date of birth as reflected at the time of her admission in the Government School. Inviting attention of this Court towards Ex. P9A-the Secondary School Mark-sheet of the prosecutrix issued by the National Institute of Open Schooling, he submits that therein, her date of birth is shown as 17.07.1998 whereas, in her birth certificate issued on 10.01.2007 (EX.P12A), it is reflected as 15.03.1998. Learned counsel submits that this discrepancy raises a serious doubt with regard to the date of birth of the prosecutrix being 17.07.1998. 4. Shri Sharma asserts that the prosecution has not been able to establish that the appellant has subjected the prosecutrix to rape. He submits that in this regard, the prosecution case rests upon the sole testimony of the prosecutrix (PW 1) inasmuch as testimony of her father (PW 2), her brother (PW 3) and her mother (PW 4) is based on hearsay, i.e., as told to them by the prosecutrix. Learned counsel contends that testimony of the prosecutrix is not trustworthy and reliable inasmuch as it is full of contradictions and material improvements. Learned counsel contends that testimony of the prosecutrix is not trustworthy and reliable inasmuch as it is full of contradictions and material improvements. He submits that while, in the FIR, it was alleged that the appellant used to force her to have telephonic conversation with him, used to harass and victimise her family members, used to blackmail her and threatened to put her photo on internet and she was subjected to ‘wrongful act’ 10-12 times, in her statement recorded under Section 164 CrPC (Ex. P2), it is alleged that on 10 th January, the appellant subjected her to rape at her residence when she was alone, her conversation was recorded by him who used to threaten her to disclose the same to her family members, he had her photos snapped and used to threaten to show the same to everybody, when she refused to enter into illicit act with him, he threatened her of abduction, of putting her photos and recording on internet if she refused to make it public that her father used to keep her as his wife. It also contains the allegations of beating her, to take her forcibly to his house at 7:30 am and to leave her back at 12:30 pm after subjecting her to ‘wrongful act’ on multiple occasions. She has stated therein that when she handed over the mobile given by him to her family members, the FIR was lodged. Shri Sharma submits that however, in her Court statement as PW 1, she has confined her allegation of taking her forcibly to his house at 7:30 am and to leave her back at 12:30 pm only to one occasion. Further, in her cross examination, she has admitted to be in love relationship with the appellant and that they used to have conversation on mobile out of her freewill and she has accepted the suggestion that on 10.01.2014, the appellant did not visit her home. She has further stated in her deposition that after 10.01.2014, she did not recollect the date on which she was subjected to ‘wrongful act’ except 05.11.2014 on which date, when she was subjected to the ‘wrongful act’, she has raised hue and cry. She has further stated in her deposition that after 10.01.2014, she did not recollect the date on which she was subjected to ‘wrongful act’ except 05.11.2014 on which date, when she was subjected to the ‘wrongful act’, she has raised hue and cry. She has specifically stated in her cross-examination that on 05.11.2014, her mother and brother came to know of her conversation on mobile with the appellant whereupon, there was a quarrel in between her brother and the appellant culminating into registration of the FIR. Learned counsel submits that in view of the aforesaid statement, it is apparent that it is full of contradictions and improvements on material aspects of the case rendering it totally unreliable. He submits that the learned trial Court has recorded his conviction without appreciating the aforesaid important aspects of the matter which renders it bad in law. He, therefore, prays that the appeal be allowed, the judgment impugned dated 13.07.2020 be quashed and set aside and he may be discharged from the offence alleged. 5. Per contra, learned Public Prosecutor, opposing the submissions and supporting the findings recorded by the learned trial Court vide judgment impugned dated 13.07.2020, prayed for dismissal of the appeal. 6. Despite intimation, none appears for the complainant/victim. Heard. Considered. 7. Indisputably, except the oral testimony, there is no other evidence available on record to substantiate the allegation of rape. Although, the prosecution has examined father (PW 2), brother (PW 3) and mother (PW 4) of the prosecutrix to lend credibilty to the allegations levelled by the prosecutrix against the appellant of subjecting her to rape; but, indisputably, their testimony is based on hearsay, i.e., as apprised to them by the prosecutrix and they have not witnessed either the incident or the prosecutrix and the appellant in company of each other in a compromising position or otherwise. Thus, the prosecution case hinges upon the sole testimony of the prosecutrix ‘M’ (PW 1). 8. It is trite law that an accused for an offence of rape can be brought to book on the sole testimony of the prosecutrix provided it is of sterling worth suffering from no infirmity in the shape of contradictions and improvements on material aspects right from beginning, i.e., from registration of the FIR till end, i.e,. her deposition in Court. Their Lordships have, in the case of Nirmal Premkumar and Others Vs. State Rep. her deposition in Court. Their Lordships have, in the case of Nirmal Premkumar and Others Vs. State Rep. By Inspector of Police : MANU/SC/0188/2024: 2024 SCC OnLine SC 260 :, after appreciating a catena of precedential law, held succinctly as under:- “ 15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a "sterling witness" without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.” (Emphasis supplied) 9. We now propose to appreciate the testimony of the prosecutrix taking guidance from the words of caution as pronounced by the Hon’ble Supreme Court of India in the aforesaid case. 10. In the written complaint (Ex. P1) submitted by the prosecutrix accompanied with her father and mother, it is alleged that the appellant threatens her of murder, to accept the phone, of blackmailing if she does not meet his demand to go with him, to disclose her photographs to public, to put her recording on internet, to subject her to bad touch while going to and coming from school, to harass her family members, to threaten to put her family members behind bars and to subject her to ‘wrongful act’ 10-12 times. However, the FIR registered thereupon reveals that upon asking by the police, she has stated that she knew the appellant for last about one year and was subjected to rape on the onset of the month of January, 2014 at her home at about 5-6 pm which she did not disclose to anybody. She has further stated that the appellant had forcibly given her a phone which, she handed over to her father and her family members came to know of the incident in August, 2014; but, they kept mum under the apprehension of disrepute. She has further stated that the appellant had forcibly given her a phone which, she handed over to her father and her family members came to know of the incident in August, 2014; but, they kept mum under the apprehension of disrepute. She has further stated that her nude photographs were taken while doing ‘sex’ and he threatened her to use the same, she was subjected to ‘wrongful act’ 10-12 times and the last such occasion was 2-3 months back. Thus, although, in the written report, there is an allegation of subjecting her to ‘wrongful act’ 10-12 times; but, without specifying any time period. However, on asking by the Investigating Agency at that time, she has stated to have been subjected to ‘wrongful act’ on the onset of the month of January, 2014 at her home and lastly, about 2-3 months before lodging of the FIR. She also stated that her family members came to know of this in the month of August, 2014. But, in her statement recorded under Section 164 Cr.P.C. (Ex.P 2), she has specified the date when she was subjected to ‘wrongful act’ at her home as 10 th January when she was alone. In it, for the first time, it was alleged that her conversation was recorded by the appellant and used to threaten her of disclosing the same to her family members, when she refused to indulge in ‘wrongful act’ with him, he threatened her of abduction, he threatened her of putting her photographs and recording on internet if she did not make it public that her father used to keep her as his wife, he used to beat her, used to take her forcibly to his house in the morning at 07.30 am and used to leave her back at 12.30 pm after subjecting her to ‘wrongful act’ and when she handed over the mobile phone to her family members, they lodged the FIR. Thus, it is apparent that for the first time, the prosecutrix has levelled numerous allegations in her statement recorded under CrPC, not part of the allegations in the FIR. Further, in her Court statement as PW 1, she has confined her allegation of taking her forcibly to his house at about 07.30 A.M. only to one occasion. Thus, it is apparent that for the first time, the prosecutrix has levelled numerous allegations in her statement recorded under CrPC, not part of the allegations in the FIR. Further, in her Court statement as PW 1, she has confined her allegation of taking her forcibly to his house at about 07.30 A.M. only to one occasion. In her cross-examination, she has admitted to be in love relationship with the appellant and to have romantic conversation over mobile with him which did not annoy her mother and father. Although, at the time of lodging the FIR, she has claimed to have been subjected to rape in the beginning of the month of January, 2014 at her home which has been reiterated in her statement recorded under Cr.P.C. with the specific date as 10.01.2014; but, in her cross- examination, taking a contradictory stand, she has admitted that the appellant did not visit her home on 10.01.2014. She has further deposed that she did not recollect as to when she was subjected to ‘wrongful act’ by the appellant after 10.01.2014 except on 05.11.2014. She has given graphic details as to what happened on 05.11.2014 when she was subjected to ‘wrongful act’ by the appellant; but, in her written report (Ex P1) dated 05.11.2014 itself, this allegation is conspicuously absent; rather, she has categorically stated at that time, upon asking, that she was subjected to ‘wrongful act’ last time about 2-3 months ago. Further, the allegation of subjecting her to rape on 05.11.2014 is not there in her statement recorded under CrPC. Therefore, we do not find this allegation to be worth confidence inspiring. Further, at the time of registration of the FIR, she has deposed to have disclosed everything to her family members in August, 2014; but, in her deposition as PW 1, she has categorically stated not to have disclosed any wrong doing with her by the appellant to anybody from 10.01.2014 till November 2014. Further, at the time of registration of the FIR, she has deposed to have disclosed everything to her family members in August, 2014; but, in her deposition as PW 1, she has categorically stated not to have disclosed any wrong doing with her by the appellant to anybody from 10.01.2014 till November 2014. In view of the aforesaid analysis of allegations by her in the FIR, statement before the Investigating Agency at that time, her statement recorded under Cr.P.C. and her deposition before the learned trial Court as PW 1, it is apparent that it is full of contradictions and improvements on material aspects of the matter rendering it totally unreliable to warrant conviction of the appellant under Section 376 (2)(n) IPC or under the Act of 2012 based upon it. 11. A perusal of the judgement impugned reveals that the learned trial Court has not appreciated the aforesaid important material contradictions and improvement in the testimony of the prosecutrix. It further reveals that the learned trial Court has erred in recording the finding of conviction of the appellant holding that the allegation of rape is corroborated from the medical evidence inasmuch as upon medical examination of the victim, her hymen was found to be ruptured and fibrosed. So far as rupture of hymen is concerned, it can be on account of multiple reasons including the sexual intercourse; but, merely on that basis, no inference could have been drawn that it was only on account of rape upon her by the appellant in absence of cogent evidence in support thereof. As already held, we are not satisfied that the prosecution has been able to establish the allegation against the appellant of subjecting the prosecutrix to the offence of rape. Further, the learned trial Court has gravely erred in recording a finding that since, the prosecutrix has levelled allegation of subjecting her to rape last on 05.11.2014, it was natural that her hymen was found to be ruptured and fibrosed in her medical examination conducted on 07.11.2014. Medically speaking, a ruptured hymen can be fibrosed by formation of excessive fibrous connecting tissues as a repetitive process which happens gradually over time. Medically speaking, a ruptured hymen can be fibrosed by formation of excessive fibrous connecting tissues as a repetitive process which happens gradually over time. Moreover, we have already held, after critically and forensically examining the testimony of the prosecutrix, that the allegation of rape on 05.11.2014 is not established; however, even assuming it to be so, her medical examination (Ex.P6) reveals no sign of recent forcible intercourse as alleged or any mark of external/internal injury. Thus, the findings of the learned trial Court are not found to be sustainable in the eye of law. 12. Moreover, while, in her written report (Ex. P1), no reason is disclosed as to what compelled the complainant for its submission, in her statement recorded under Section 164 CrPC (Ex. P2), it is stated that when she handed over her mobile phone to her family members, they filed the instant case against the appellant. In her examination-in-chief as PW 1, improving her statement, the prosecutrix has stated that when the appellant started to harass her too much, she disclosed everything to her mother and also handed over phone to her whereupon, the FIR was lodged; but, during her cross examination, she has stated that she used to have romantic conversation over mobile with the appellant and despite this conversation, her parents were not annoyed. Further, taking a somersault, she has claimed that her mother came to know only on 05.11.2014 about the phone given to her by the appellant. Taking a totally new and contrary stand, her father Shri Babulal (PW 2) has deposed that his wife found a mobile phone from the bag of the prosecutrix who informed that it was forcibly given to her by the appellant and further claimed that he used to harass her whereupon, when he alongwith his wife confronted the appellant, he sought apology. During his cross examination, he claimed that his wife found the mobile about three months prior to 06.11.2014 and when he confronted the prosecutrix at that time, she did not inform of rape upon her. However, in the same breath, he further claims that since January, 2014 till 06.11.2014, the prosecutrix never apprised either him or his wife that the mobile phone was forcibly given to her by the appellant and claimed that he was unaware of the conversation in between them. However, in the same breath, he further claims that since January, 2014 till 06.11.2014, the prosecutrix never apprised either him or his wife that the mobile phone was forcibly given to her by the appellant and claimed that he was unaware of the conversation in between them. While, the prosecutrix has categorically denied as PW 1 that on account of quarrel in between the appellant and her brother Ravikant on 05.11.2014, the case was registered; but, her mother as PW 4 has stated that there was a quarrel in between the appellant and her son Ravikant and when Ravikant informed her about it, she, in turn informed her husband Shri Babulal whereupon, they lodged the FIR on the date of quarrel itself i.e. 05.11.2014. 13. Thus, from the aforesaid evidence available on record, genesis of the FIR as also the prosecution story is rendered doubtful. 14. So far as drawing of presumption under Section 29 of the Act of 2012 is concerned, it is trite law that it does not take away the initial burden of prosecution to establish the foundational facts constituting the sexual offence in which, as already observed, it has miserably failed. Therefore, conviction of the appellant by the trial Court based on the presumption drawn under Section 29 is found to be bad in law. Even otherwise, since, this Court has come to the conclusion that the prosecutrix was not subjected to any sexual offence, no occasion arises to warrant application of Section 29 of the Act of 2012 and for this very reason, we also do not propose to discuss the evidence with regard to her age as appellant’s conviction under Section 5 (l) and 6 of the Act of 2012 is rendered unsustainable. 15. The judgement impugned dated 13.07.2020 further reveals that the appellant has been convicted under Section 506 IPC without recording any finding in support thereof. While appreciating the evidence qua the allegation of rape and holding the appellant guilty of the same, in the same breath, without even referring any evidence in support thereof, the appellant has been convicted under . However, from the evidence on record, we are not satisfied that the ingredients necessary to constitute the offence of criminal intimidation by the appellant exist and his conviction under is also not found sustainable in the eye of law. 16. Resultantly, this appeal is allowed. However, from the evidence on record, we are not satisfied that the ingredients necessary to constitute the offence of criminal intimidation by the appellant exist and his conviction under is also not found sustainable in the eye of law. 16. Resultantly, this appeal is allowed. The judgement impugned dated 13.07.2020 passed by the learned Special Judge (Protection of Children From Sexual Offences Act, 2012) No.3, Jaipur Metropolitan-II in Sessions Case No.31/2019 is quashed and set aside and the appellant is discharged of the charges levelled against him. 17. In view of the provisions of Section 437 -A CrPC ( Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Nemichand S/o Ramjilal is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount within four weeks before the Registrar (Judl.) of this Court which shall be effective for a period of six months with the stipulation that in that event of Special Leave Petition being filed against the judgement or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.