1 2025:CGHC:10144 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 190 of 2007 Mukesh Kumar Sahu, S/o Kushram Sahu, aged about 18 ½ years, R/o Village Amlidih, Gandhi Nagar, Telibandha, Raipur, District Raipur (C.G.) ... Appellant versus State of Chhattisgarh, through Police Station- Telibandha, District Raipur (C.G.) ... Respondent For Appellant : Mr. Rajkumar Sahu, Advocate For Respondent/State : Mr. Vivek Mishra, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (28.02.2025) 1. This criminal appeal filed by the appellant under Section 374 of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 28-02-2007, passed by learned 7th Additional Sessions Judge, Raipur (C.G.), in Sessions Trial No.50/2006, whereby the appellant has been convicted as under:- Conviction Sentence & Fine Under Sections 363, 366 & 376 of the IPC R.I. for 7 years in each Section (the sentences were directed to run concurrently) Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.03.03 15:26:48 +0530 2 2. As per prosecution story, the victim (PW-1) resides in Amlidih, Gandhi Nagar. In front of her house is the residence of appellant Mukesh Sahu, who had been visiting her house for the past one or two months. On 29.09.2005, when the victim’s parents had gone to work, she was alone at home when Mukesh Sahu arrived and told her to come with him, promising marriage. When the victim refused, he threatened to kill her, which frightened her. The appellant, Mukesh Sahu, took her to Dongargarh, where he kept her on 29 and 30.09.2005. After that, he took her to Nagpur by train. In Durga nagar, he kept her in a rented house of one rickshaw puller. There, under the pretext of marrying her, he raped her. The appellant continuously raped the victim from 03.10.2005 to 05.10.2005. Due to this, she got fever. On 10.10.2005, he brought her back to Raipur and left her at the railway station, saying he would return but never did. On 11.10.2005, the victim returned home and informed her father and her mother, about the incident. Thereafter, along with her parents, she lodged FIR on 13.10.2005 vide Ex.P-1. The prosecutrix was medically examined by Dr. N. Sachdev (PW-14) who has given his report vide Ex. P-22. After completing the investigation, a charge sheet was filed against the appellant. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses, exhibited 23 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. 4. After hearing the parties, vide impugned judgment dated 28.02.2007, the learned Trial Court has convicted and 3 sentenced the appellant as mentioned in paragraph 1 of this judgment. Hence, this appeal. 5. Learned counsel appearing for the appellant submits that the date of birth of victim (PW-1) is not proved. No conclusive evidence regarding her age has been produced by the prosecution. To verify her age, her ossification test was also not conducted. Thus, as date of birth of the victim (PW-1) was not proved, the prosecution has failed to prove that the victim was minor at the time of the incident. He further submits that victim was a consenting party though prosecution has failed to prove its case beyond doubt, the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence. 6. On the other hand, the learned counsel for the State submitted 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 the case, the incident is said to have taken place on 29/09/2005 whereas the report was filed by the victim (PW-1) with a delay of about 15 days on 13/10/2005. Dr N. Sachdev (PW-14) conducted a medical examination of the victim (PW-1) and submitted a report vide Exhibit P-22 according to which no definite opinion has been given 4 regarding rape. Consenting party 9. The victim (PW-1) has supported the prosecution case against the appellant in her Court statement and has stated that the appellant kept taking her to various places and kept raping her and had threatened to kill her if she told anyone. But if her entire statement is examined deeply, it becomes clear that the victim (PW-1) went with the appellant to Dongargarh temple, Nagpur and stayed in a rented house, came to Raipur railway station and then went to her house and thereafter got the report registered. It is clear from her statement that the appellant, who is her neighbour, had been visiting the house of the victim and talking to the victim (PW-1) earlier. 10.From the facts admitted by the victim (PW-1) in cross- examination, it is clear that when she was alone at home, she went with the appellant on his request. They took an auto from New Rajendra Nagar where many other people were also present, shops were open, the railway station was crowded where the police was also on duty. They took tickets there. They attended the fair at Bamleshwari Devi Temple, Dongargarh. They did not take any room there but slept in the courtyard of the temple. They also roamed around in the fair and visited the temple. The victim (PW-1) never gave any information to the landlord in Nagpur that the appellant had forced himself on her and forcibly brought her with him. The victim (PW-1) has also admitted in cross- examination that when they first went to lodge a report, the police said that there was no case against the appellant. Thereafter, they contacted a lawyer and took advice from 5 him who got the report prepared. Thereafter, a report was filed in the police station. Thus, it is clear that the victim (PW-1) kept visiting, roaming and staying with the appellant at various public places for several days, where she came in contact with many people and police was also present at railway station etc. and fair. Despite this, the victim (PW-1) never, anywhere, made any complaint against the appellant to anyone. From the above entire situation and evidence, it is found that the victim (PW-1) was consenting party. 11.Now the offence under Sections 363, 366 & 376 of IPC will be made out against the appellant only if the victim is found to be under 16 or 18 years of age at the time of the alleged incident i.e. 29.09.2005. Age Determination 12.In this case, neither the victim (PW-1) nor her father (PW-2) and mother (PW-4) were able to tell the date of birth of the victim. The school's admission register has been seized by the prosecution to prove the age of the victim vide Exhibit P-10-A. To prove that admission registration, the Headmistress of Maharana Pratap Primary Girls School, Gol Bazar, Raipur, Smt. Akhtar Naseem (PW-6) has been examined. According to the admission registration (Exhibit P-10-A), the date of birth of the complainant is stated as 05/11/1989. If calculated from that date, then on the date of incident i.e. 29/09/2005, the age of the victim (PW-1) was more than 15 years, but not 16 years. In the above 6 situation, when the victim (PW-1) or her parents were unable to tell the date of birth of the victim (PW-1), then the legality of the date of birth recorded in the said Dakhal Kharij register will have to be evaluated. 13. 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 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 7 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 victim in the form of the school register was not sufÏcient to arrive at a finding that the victim was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the victim. It was neither safe nor fair to convict the accused, particularly when the age of the victim was such a crucial factor in the case.” 14. 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 victim in the absence of the material on the 8 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.” 15. Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held 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.” 16. 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:- 9 “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 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).” 17. 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 victim has also not been able to give 10 correct date of birth of the victim. 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.” 18. Considering the evidence in the present case in the light of the above judgments, it is clear that the victim (PW- 1) and her parents have been unable to tell the date of birth of the victim. The entry in the Dakhil Kharij register of Exhibit P-10, Mrs. Akhtar Naseem (PW-6) presenting the register, but Mrs. Akhtar Naseem has admitted in cross- examination that the said entry is not in her handwriting because she was not posted there at the time of admission of the victim (PW-1). She has also admitted that she cannot tell on what basis the date of birth of the victim (PW-1) has been recorded in that register. She has also admitted that when a student is admitted in class I, they do not take a birth certificate and there is no other certificate or document in their register regarding the date of birth of the 11 victim as well. She has also stated that at the time of admission in their school, they record the estimated date of birth of the child given by the child’s parents. Thus, it is not clear on what basis the date of birth of the victim (PW- 1) has been recorded as 05/11/1989 in the Dakhal Kharij register (Exhibit P-10-A). Therefore, in the light of the precedents, this Court finds that the prosecution has failed to prove beyond doubt that the date of birth of the victim (PW-1) is 05/11/1989 and that at the time of the incident she was below 16 or 18 years of age. 19. In such a situation, when the victim (PW-1) is found to be a consenting party and the prosecution has failed to prove that the victim (PW-1) was a minor at the time of the incident, the conviction of the appellant is not found to be appropriate. Hence, his conviction is not found to be sustainable. 20. Accordingly, the appeal is allowed. The impugned judgment is set aside and the appellant is acquitted. 21. 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. 22. 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/- (Sanjay Kumar Jaiswal) Judge Shubham