1 CGHC010349102019 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1458 of 2019 Avinash Kumar Bagde S/o Shri Pyarelal Bagde Aged About 21 Years R/o Village Indra Awash Manpur Police Station Manpur District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Appellant versus State of Chhattisgarh Through Police Station Manpur District Rajnandgaon Chhattisgarh ... Respondent For Appellant : Mr. Ajay Mishra, Advocate For Respondent/State : Mr. HAPS Bhatia, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (09.07.2026) Sanjay Kumar Jaiswal, J. 1. Invoking criminal jurisdiction of this Court under Section 374(2) of the Cr.P.C., the sole appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2026.07.13 16:36:08 +0530 2 sentence dated 25.09.2019 passed by the learned Additional Sessions Judge (FTC), Rajnandgaon (C.G.), in Special Criminal Case No.39/2017, by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 363 of IPC RI for 5 years and fine of Rs.2,000/-; in default of payment of fine, S.I. for 3 months U/s 366 of IPC RI for 5 years and fine of Rs.2,000/-; in default of payment of fine, S.I. for 3 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 Rs. 5000/-; in default of payment of fine, SI for 6 months Prosecution story 2. The prosecution case in brief is that on 21.08.2017 at about 8:30 PM, the appellant enticed away the victim, aged 16 years 10 months 3 days, from the lawful guardianship of her father from Talab Para, Manpur, District Rajnandgaon. It is further alleged that the appellant kidnapped the minor with intent to compel her marriage and to force her into 3 illicit intercourse. It is also alleged that in May 2017 and thereafter at Mamragadh, Maharashtra, the appellant committed forcible sexual intercourse with the minor, due to which she became pregnant, and also committed aggravated penetrative sexual assault on multiple occasions. On 25.08.2017, the accused’s father Pyarelal brought the victim and left her at Police Station Manpur. Thereafter, the medical examination of the victim was conducted. The victim was found to be pregnant. With regard to the age of the victim, the school admission and discharge register of the victim was seized, the certified copy of which is (Ex. P.14C). Thereafter, the statements of prosecution witnesses were recorded. The accused was arrested and his medical examination was conducted. On completion of whole investigation, charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 34 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. After hearing both the parties, the trial Court passed the impugned judgment of conviction and order of sentence. 4 Submission of the Parties 5. Learned counsel for the appellant submits that the victim (PW-5) was a consenting party and there was a love affair between the appellant the victim. 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 the alleged incident. The date of birth of the victim could not be proved. It has not been proved as to on what basis the date of birth was recorded in her school's register. In such a situation, the alleged offence cannot be said to be proved against the appellant. Therefore, the appeal may be allowed and the impugned judgment may be set aside and the accused may be acquitted. 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 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. 5 Age Determination 8. The incident has been stated to have occurred on 21/08/2017. The victim [P.W.-5] has stated her date of birth as 11/05/2001. Geeta Thakur [P.W.-3], Headmistress of Girls Primary School, Manpur, Rajnandgaon, has been examined with regard to victim’s date of birth, who has proved the school Dakhil Kharij register (Ex. P-12). According to the same, the date of birth of the victim is recorded as 11/05/2001. Her admission to the school was on 11/07/2006. Thus, as per the said date of birth, the victim was about 16 years 03 months old at the time of the incident. It would be appropriate to consider the evidentiary value of the said date of birth. 9. 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 6 observed that the date of birth in the register of a 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. “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.” 10. Hon’ble Supreme Court in the matter of Alamelu and another v. State represented by Inspector of Police, 7 (2011) 2 SCC 385 has held that:- “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.” 11. 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 8 in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his 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).” 12. 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.” 13. Considering the above in light of the judicial precedent, it is a noteworthy fact that the date of birth of 9 any child is either based on information from his/her parents or on the date of birth recorded in school. Therefore, with regard to whether the date of birth stated by the victim is the actual date of birth or not, it is significant that the father of the victim [P.W.-1] has not stated the date of birth of the victim anywhere in his Court statement. Rather, he has even said that he does not know whether the police had asked him for a birth-related document or not. It is also not clear as to who got the date of birth of the victim entered in the Dakhil Kharij register. No guardian of the victim was able to state what the date of birth of the victim was. And Geeta Thakur [P.W.-3], the Headmistress who proved the date of birth recorded in the school, has admitted in cross-examination that she does not know on what basis the date of birth of the victim was entered in the Dakhil Kharij register, nor does she know on whose information it was entered. In such a situation, keeping in view the entire evidence on record, it cannot be stated with certainty that the date of birth recorded in the school register is correct. In these circumstances, this Court finds that the prosecution has failed to prove beyond reasonable doubt that the date of birth of the victim is 11/05/2001 and that she was a minor below 18 years of age at the time of the incident. 10 Consenting Party 14. With regard to consent of the victim in the alleged act, the statement of the victim [P.W.-5] herself is noteworthy. Her father [P.W.-1] has also admitted in his statement that he himself runs a chicken shop and the accused drives a vehicle. The victim herself has stated that the accused also had a chicken shop next to their chicken shop. The victim herself has stated that the accused took her away and kept her at his relative’s house, and upon coming to know of this, her father lodged a complaint with the police. She became pregnant due to the physical relations established by the accused. In cross-examination, she has also admitted that when the accused was taking her along, her mouth was not gagged. Thus, from the statement of the victim herself it is evident that she was a consenting party. 15. The father of the victim [P.W.-1] has himself stated in his examination-in-chief that his daughter, the victim [P.W.- 5], was taken away by the accused/appellant, who was their neighbour, and that the brother-in-law of the accused came and informed him that the victim was at his house. Thereafter, he went along with the father of the accused and brought the victim to the police station. Thus, even from the statements of the father [P.W.-1] it is evident that the victim was a consenting party, who had gone and was 11 staying at the place of the brother-in-law of the appellant along with the appellant without informing anyone at home. 16. The victim herself has stated that she became pregnant. Dr. Ekta Daniel [P.W.-8], who examined her, has also stated that on 28/08/2017 she examined the victim and gave the report Ex. P-16, and that the victim was 3 months pregnant and there were no signs of injury on her external or internal organs. Thus, from the statements of the victim herself, her father, and Dr. Ekta Daniel, it is found that the victim was a consenting party. Conclusion 17. In these circumstances, this Court finds that the prosecution has failed to prove beyond doubt that the date of birth of the victim was 11/05/2001 and at the time of the incident, she was less than 18 years of age. In this situation, when the victim was an consenting party, then the said offence alleged against the appellant is not proved. In such a situation, the impugned judgment is not sustainable. 18. 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 12 the said offences. 19. It is reported that the Appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 20. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge -Shubham