1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 767 of 2018 Govind Patel, S/o Shri Bharatram Patel, aged about 21 years, R/o- Village Hardi, P.S. Kasdol, District- Baloda Bazar Civil and Revenue District- Baloda Bazar, Chhattisgarh ... Appellant versus State of Chhattisgarh, through- Police Station Chura, District- Gariabandh, Chhattisgarh ... Respondent For Appellant : Mr. Ajay Mishra, Advocate For Respondent/State : Mr. Vivek Mishra, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (07.01.2026) Sanjay Kumar Jaiswal, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein has SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2026.01.09 10:38:09 +0530 2 preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 28.03.2018 passed by the learned Special Judge, Raipur, District Raipur (C.G.) SC/ST (Prevention of atrocities) Act 1989, in Special Criminal Case under the SCST Act No. 172/2016, by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 363 of the IPC RI for 2 years and to pay fine of 500/-; in default of ₹ payment of fine, additional RI for 1 month U/s 366 of the IPC RI for 3 years and to pay fine of 1000/-; in default ₹ of payment of fine, additional RI for 2 months U/s 376 (2) of the IPC as also U/s. 6 of the POCSO Act, 2012 [However, in light of Section 42 of the POCSO Act, sentenced/punished only U/s 6 of the POCSO Act] RI for 10 years and to pay fine of 1000/-; in default ₹ of payment of fine, additional RI for 2 months U/s 3 (1)(xii) of the SC and ST (Prevention of Atrocities) Act, 1989 RI for 3 years and to pay fine of 1000/-; in default ₹ of payment of fine, additional RI for 2 months U/s 3 (2)(v) of the SC and ST (Prevention of Atrocities) Act, Imprisonment for life and to pay fine of ₹1000/-; in 3 1989 default of payment of fine, additional RI for 2 months All the sentences were directed to run concurrently Prosecution story:- 2. The prosecution case, in brief, is that the victim (PW-2) went missing from her home from 01.01.2016. Her father (PW-4) then filed a report at Chhura Police Station, and a First Information Report (FIR) was registered against an unknown person under Section 363 of the Indian Penal Code. Following an investigation, the victim (PW-2) was recovered from the custody of the accused/appellant on 18.05.2016. Thereafter, a recovery memo (Exhibit P-3) was prepared. The victim underwent a medical examination. Statements of witnesses were recorded. The victim's caste certificate was seized. The victim was found to be pregnant. Documents related to the victim's age verification were seized. After completion of the investigation, the charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 17 witnesses and exhibited 26 documents. Statement of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4 4. The learned Trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant/accused for the offence as mentioned in the opening paragraph of this judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 5. Learned counsel for the appellant submits that the victim (PW-2) was a consenting party with the accused/appellant who willingly lived with him. The prosecution has failed to prove through valid evidence that the victim was a minor and below 18 years of age at the time of alleged incident. In such a situation, the said offences cannot said to be proved. Hence, considering the above, it is prayed that the appeal may be allowed and the impugned judgment may be set aside and the accused/appellant may be acquitted of the charges levelled against him. 6. On the other hand, learned counsel for the State submits that the finding recorded by the Trial Court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel 5 for the appellant is not acceptable, hence, the appeal may be dismissed. 7. We have heard learned counsel appearing for the parties and perused the record with utmost circumspection. Age Determination 8. The prosecution has stated the victim's date of birth as 15/05/1999, regarding which Vedram Dewangan (PW-8), an Assistant Teacher at Government Higher Secondary School, Kusmi, has produced Dakhil Kharij register (Exhibit P-14) and a certificate (Exhibit P-16) issued based on it. Calculating from 15/05/1999, the victim's age on the date of the incident, 01/01/2016, appears to be less than 18 years. However, it needs to be determined whether 15/05/1999 was indeed the victim's date of birth. 9. The Supreme Court in the matter of P. Yuvaprakash vs. State Rep. by Inspector of Police, AIR 2023 Supreme Court 3525 has held in paragraphs 14 & 19 as under:- “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an 6 ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 19. It is clear from the above narrative that none of the documents produced during the trial answered the description of “the date of birth certificate from the school” or “the matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim’s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW- 9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating “that the age of the said girl would be more than 18 years and less than 20 years”. In the cross- examination, she admitted that M’s age could be taken as 19 years. However, the High Court rejected this evidence, saying that “when the precise date of birth is available from out of 7 the school records, the approximate age estimated by the medical expert cannot be the determining factor”. This finding is, in this court’s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim’s bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9.” 10. The Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder :- “14. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary 8 value without the testimony of the person making the entry or the person who gave the date of birth. “14. …The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value.” 15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 11. Hon’ble Supreme Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has held that:- 9 “the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.” 12. How, dakhil-kharij register is treated to be relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another (2008) 13 SCC 133, wherein it has been held as under:- “22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. 28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his 10 official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See: Birad Mal Singhvi v. Anand Purohit (1997) 4 SCC 24).” 13. The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:- “26. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. 34. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.” 14. In light of the aforementioned legal precedent, an examination of the evidence presented by the prosecution 11 reveals that the Assistant Teacher, Vedram Dewangan (PW- 8), who proved the Dakhil Kharij register, admitted during cross-examination that the register (Exhibit P-14) does not mention who brought the victim to the school for admission. The register also does not mention the basis on which the victim's date of birth was recorded; rather, the victim's date of birth was recorded based on the transfer certificate, and the victim had completed her prior schooling at another school before being admitted to class 9 at Government Higher Secondary School, Kusmi. Thus, it is clear that the basis for recording the date of birth in the Dakhil Kharij register (Exhibit P-14) was the transfer certificate. 15. The victim herself stated in her Court testimony that she was 18 years old at the time of the incident. She did not state her date of birth as 1999 according to the school register, but rather gave her date of birth as 15/05/1997. Therefore, she herself did not confirm the fact that she was a minor at the time of the incident. 16. Similarly, the victim's father (PW-4) also stated in his Court testimony that at the time of the incident, the victim was studying in class 10th and was 18 years old, and that he had deliberately understated her age in the school 12 records. Thus, neither the victim herself nor her father confirmed the fact that she was a minor on the date of the incident, and the father did not confirm that the victim's date of birth was 15/05/1999. Therefore, the date of birth recorded in the transfer certificate is not found to be authentic. In this way, it has not been proved that the victim's date of birth is 15/05/1999 and that she was a minor under the age of 18 at the time of the incident. Consenting party:- 17. The victim (PW – 2) stated in her examination-in-chief that the accused used to visit frequently in Yashwant's grocery store in her village, Kosmi Nawapara, where they started conversation and became friends, which gradually developed into a love relationship. She called the accused and invited him to her village, expressing her desire to go with him. On 31-10-2015, the accused came to her house, and she went with him to Raipur. She stayed with him in Hirapur for four and a half months, during which time they had physical relations, and she became pregnant by the accused. In cross-examination, she also stated that she had expressed her desire to marry him and, after informing her family and being of legal age, she formally married him at the Banjari Temple in Raipur on 13 02.01.2016. She also admitted that on the date of her testimony, she was living with the accused as his wife in Raipur. Thus, the victim's statement clearly indicate that she was a consenting party. 18. In this situation, when the victim was a consenting party and it has not been proved beyond doubt that she was a minor at the time of the incident, then the offence under Sections 363, 366 & 376 (2) of the Indian Penal Code and Section 6 of the POCSO Act is not proved. Since the said offences are not proved, the provisions of Section 3 (1) (xii) & Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are also not proved. In such a situation, the impugned judgment is not sustainable. Conclusion:- 19. In view of the aforesaid discussion and in light of the above referred judgments, the appeal is allowed and the impugned judgment is hereby set aside. The appellant is acquitted of the said offences. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 14 20. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham