1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 738 of 2023 Judgment Reserved on: 03.01.2025 Judgment Delivered on: 08.01.2025 Chhotu Lal Ajay, S/o Alekh Ram Ajay, aged about 24 years, R/o Village Bharavchuvan, P.S. Basna, District Mahasamund, Post Jute Mill, Chhattisgarh. Current Residence : Bonda Tikra, Post Jute Mill, District Raigarh, Chhattisgarh ... Appellant versus State of Chhattisgarh, Through P.S. Kotwali, District Raigarh Chhattisgarh ... Respondent For Appellant : Mr. Sabyasachi Bhaduri, Advocate For Respondent/State : Mr. Tarkeshwar Nande, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal CAV Judgment 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.01.08 18:19:11 +0530 2 judgment of conviction and order of sentence dated 06-12- 2022, passed by the Court of Fast Track Special Court, Raigarh (C.G.), in Case No.39/2019 (Special POCSO Case), whereby the appellant-accused has been convicted as under:- Conviction Sentence & Fine 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 376 (2) of IPC) R.I. for 10 years with fine of Rs.5,000/-, in default of payment of fine, additional imprisonment for 6 months 2. The prosecution story in brief is that the prosecutrix/complainant submitted a written complaint at the Jutemill Outpost, stating that she has studied up to Class VIII and her date of birth is 27.05.2002. She alleged that the accused, Chhotulal Ajay, had established physical relations with her under the pretext of marriage from 07.03.2018 to 07.07.2019, resulting in her becoming four months pregnant. She further alleged that despite her refusing to marry him, the accused persisted in his advances. Now, Chhotulal Ajay is refusing to marry her and has stated that he will not take her with him. Upon informing her mother about her pregnancy, her mother informed her father and a community health worker (Mitanin), who also confirmed her pregnancy. Based on the prosecutrix/complainant’s written complaint (Exhibit P-1), First Information Report (Exhibit P-2) was registered. During the investigation, with the consent of the prosecutrix/complainant and her parents, the victim 3 underwent a medical examination of her private parts. The accused was subjected to a potency test before a medical professional, and his arrest was documented in Arrest Memo Exhibit P-9. A certified copy of the school admission register verifying the the prosecutrix’s age was obtained. Statements of the prosecutrix and other witnesses were recorded. During the prosecutrix’s medical examination, slides were preserved by a female doctor, and the seized slides, along with the prosecutrix’s undergarments, were sent to the Forensic Science Laboratory for examination. Upon completion of the investigation, a charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses and exhibited 20 documents. Statements 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. However, 3 documents were exhibited by him in his defence. 4. After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. 5. Learned counsel for the appellant submits that the prosecutrix was a consenting party in the alleged act. He further submitted that the prosecution has failed to prove that the prosecutrix (PW-1) was below 18 years of age at the time of the alleged incident. The date of the incident is also not certain. Since the date of the incident is not certain and it is not clear on the basis of which document the date of birth was entered in the Dakhil Kharij register and school progress report and the parents of the prosecutrix have also been unable to clearly state the date of birth. Thus, the 4 prosecution has failed to prove that the prosecutrix was less than 18 years of age at the time of the alleged incident. Therefore, he may be acquitted of the charges leveled against him by setting aside the judgment of conviction and order of sentence by giving him the benefit of doubt. In support of his submission, he referred the judgment rendered by the Hon’ble Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397. 6. On the other hand, the learned counsel for the State submits that the conclusion given 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. Heard learned counsel for the parties and perused the record with utmost circumspection. 8. In this case, the trial court, on the basis of evidence presented by the prosecutrix (PW-1), her mother (PW-2), father (PW-3) and other evidence, has found that on the basis of the written report of the incident (Exhibit P-1), the First Information Report (Exhibit P-2) was registered on 11/07/2019, in which the incident with the prosecutrix is stated to have taken place between 07/03/2018 to 07/07/2019. Thus, the incident with the prosecutrix continued for about 01 year 04 months and despite becoming pregnant, the prosecutrix did not tell her family about the sexual intercourse with the appellant, but told later and on the basis of the statement of the prosecutrix 5 and her parents, the trial Court has concluded in paragraph 47 of the judgment that the prosecutrix (PW-1) was the consenting party. 9. If the prosecutrix (PW-1) is found to be a consenting party, then to prove the offence under Section 376(2) read with Section 6 of the POCSO Act, it becomes necessary for the prosecution to establish beyond doubt that the prosecutrix was below 18 years of age at the time of the incident. 10. That mother of the prosecutrix (PW-2) has been unable to tell the date or year of birth of the prosecutrix. Her father (PW-3) has also only told the year and has been unable to tell the date. The progress report of the school's Article-A and Dakhil Kharij register Exhibit P-19 have been produced. According to it, the date of birth is recorded as 27/05/2002 but, it is not clear on what basis the date of birth has been recorded. The prosecution has not examined the witness who had recorded the date of birth of the prosecutrix in the Dakhil Kharij register and thus, the evidence presented regarding the date of birth is not of conclusive nature. The date of the incident is also not certain. If the alleged date of birth is calculated from 27/05/2002, then it is not clear on which date the incident took place. Even if the incident is considered to be of 07/03/2018, then the prosecutrix is about 16 years old. If the last date is considered to be 07/07/2019, then the prosecutrix would have been about 17 years and 05 months old. 11. 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 6 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 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.” 7 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 sufÏcient 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.” 12. Hon’ble the Apex Court in the matter of Alamelu and another v. State represented by Inspector of Police, (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.” 13. Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held 8 that:- “to render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other ofÏcial book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his ofÏcial duty, or any other person in performance of a duty specially 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 to 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.” 14. 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 9 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 ofÏcial 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 ofÏcial 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).” 15. 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 10 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.” 16. In the light of argument on behalf of the appellant’s side and the cited judgments, if I consider the prosecution evidence presented on the issue of age of the prosecutrix in the case under consideration, then the only documents in this regard are the Dakhil Kharij register Exhibit P-19 and the school progress report Article A-1, according to which the date of birth of the prosecutrix is recorded as 27/05/2002. 17. Nirakar Patel (PW-6), Head Teacher of Government Primary School Bonda, has produced and certified the said Dakhil Kharij Register Exhibit P-19. He has admitted in cross-examination that the entry made in Exhibit P-19 regarding the prosecutrix is not in his handwriting but in the handwriting of Assistant Teacher Gangadhar Bariha. It is not clear why Assistant Teacher Gangadhar Bariha was not examined by the prosecution. This witness has also admitted that it is not mentioned in the Dakhil Kharij Register on the basis on which the date of birth of the prosecutrix has been recorded. He has also admitted that he has not brought the documents presented by her guardian at the time of admission. Thus, it is not clear on what basis the date of birth of the prosecutrix was recorded 11 in the Dakhil Kharij Register of the school. 18. The first witnesses to tell the date of birth of any child are his/her parents. The child gets the information about his/her date of birth from the parents only. The mother of the prosecutrix (PW-2) has clearly stated in her evidence that she does not know the date of birth of the prosecutrix. The prosecutrix has studied up to class 5th-6th. Whose admission in school was done by her father. She has further stated that she is unable to tell the age of her other children also. The father of the prosecutrix (PW-3) has stated that he does not remember the date of birth of the prosecutrix but only remembers the year 2002. He has stated that the prosecutrix has studied up to class 8th. He had got the prosecutrix admitted in class 1st. When asked a suggestive question, he said that the date of birth of the prosecutrix is 27/02/2002, he said that he does not remember. He has also stated that at the time of the incident, the age of the prosecutrix was 17 years. He has admitted in paragraph 14 that when he went to the school for admission of the prosecutrix, he did not take any document with him. 19. In this way, the date of birth of the prosecutrix must have been registered as 27/05/2002 by her father. There is a doubt in this matter. In this case, the incident is not of a single day but the incident is said to have continued for about 01 year and 04 months. The prosecutrix has been found to be a consenting party. In such a situation, it was necessary that the prosecution proves beyond doubt that the prosecutrix was below 18 years of age at the time of the incident, but in the light of above cited judgments, on the basis of the statements of prosecution witnesses, it is not 12 proved beyond doubt that the date of birth of the prosecutrix is 27.02.2002 and she was below 18 years of age at the time of the incident. In such a situation, the benefit of doubt goes to the appellant and the impugned judgment of conviction and order of sentence is not found to be upheld. 20. Consequently, the appeal is allowed and the impugned judgment is set aside and the appellant is acquitted of the charges levelled against him, giving him the benefit of doubt. 21. It is reported that the appellant is in jail, he be released forthwith if not required to be detained in any other case/s. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the concerned Superintendent of Jail where the Appellant is lodged and suffering jail sentence, for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham