1 2025:CGHC:32923 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 54 of 2022 1 - Maheshwar Sahu S/o Chatram Sahu Aged About 23 Years R/o Village Ranigaon P.S. Baradwar District Janjgir Champa Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Arakshi Center Baradawar District Janjgir Champa Chhattisgarh. ... Respondent For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent/State : Ms. Anuradha Jain, PL Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 15/07/2025 1. This Criminal Appeal preferred by the appellant under Section 374(2) of the Code of Criminal Procedure is directed against the impugned judgment dated 09.09.2020, passed by the Special Judge (POCSO Act), PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.07.16 15:08:02 +0530 2 Sakti, District- Janjgir-Champa in Special Criminal Case No.01/2020, by which the appellant herein has been convicted and sentenced as under:- CONVICTION SENTENCE U/s. 363 of Indian Penal Code : Rigorous imprisonment for 7 years and fine of Rs.5,000/- in default of payment of fine further S.I. for 6 months U/s. 366 of Indian Penal Code : Rigorous imprisonment for 7 years and fine of Rs.5,000/- in default of payment of fine further S.I. for 6 months U/s. 6 of Protection of Children from Sexual Offences Act, 2012 : Rigorous imprisonment for 10 years and fine of Rs.10,000/- in default of payment of fine further S.I. for 6 months All sentences run concurrently. 2. Case of the prosecution, in brief, is that on 19.10.2019, at about 1 pm, the victim, aged about 16 years old, told her mother- GB (PW-3) that she is going alone to her maternal uncle’s village at Ranixxxx on her bicycle. Thereafter, in the evening, at about 6 pm, on the same day i.e. 19.10.2019, after parking her bicycle near the mobile shop, she went somewhere else. Later on, her mother got the information that the appellant/accused had enticed the minor prosecutrix and taken her along with him. Subsequently, a named FIR was lodged by the mother on 22.10.2019 vide Ex-P/4. Thereafter, the victim was recovered on 18.11.2019 vide Ex-P/5 and she disclosed that the appellant/accused on 3 the pretext of marriage, took her and committed rape with her near a canal. Thereafter, the appellant dropped her at Railway Station Baradwar, from where, she went to her sister’s (PW-2) village at Korba. Crime details form was prepared vide Ex-P/2. After obtaining the consent of the victim and parents vide Ex-P/1, the victim was subject to medical examination vide Ex-P/12 by Dr. Kiran Binjwar (PW-8), who opined that the hymen was ruptured, however, she didn’t give any information of recent sexual intercourse. The appellant was also medically examined vide Ex-P/13 and he was found capable of performing sexual intercourse. Statements of the witnesses were recorded. The School Admission Register (Ex-P/10) was seized from the Headmaster (PW-4), wherein, the date of birth of the victim was recorded as 16.08.2003. After completion of the investigation, the charge sheet was filed. 3. During the course of trial, the appellant/accused abjured his guilt and claimed to be tried. In order to prove its case, the prosecution examined as many as 8 witnesses and exhibited 19 documents vide Ex-P/1 to Ex- P/19. The appellant/accused, in his statements recorded under Section 313 of the CrPC, stated that he has been falsely implicated in the case, however, he did not adduce any defence evidence. 4. Learned trial Court, after appreciating the evidence available on record, convicted the appellant for the aforesaid offences as mentioned in the opening paragraph of this judgment, against which, the present Appeal has been preferred. 4 5. Learned counsel for the appellant submits that the age of the victim has not been proved to be less than 18 years on the date of offence. He would further submit that the victim is a consenting party, therefore, the conviction recorded by the trial Court is erroneous and the appellant is entitled for acquittal. Thus, the Appeal deserves to be allowed. 6. Learned counsel for the State would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences; therefore, the Appeal deserves to be dismissed. 7. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. First of all, the victim has been held to be less than 18 years on the basis of the Dakhil Khariz Register (Ex-P/10), which has been proved by the Headmaster of the School (PW-4). In the cross-examination, the said witness categorically admits the fact that at the time of admission, he was not present. Further, only on the basis of the assumption, the mother (PW-3) has deposed the age of the victim as about 16 years. The victim has deposed her date of birth as 20.03.2003 and all these go to show that there is variation in the date of birth of the victim. Furthermore, the victim has also stated differently regarding her age from what has been mentioned in the School Admission Register (Ex-P/10). 5 9. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana 1 , has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit 2 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 of the same, it 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.” 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 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 6 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.In the case of P. Yuvaprakash vs. State Rep. By Inspector of Police 3 , the Hon'ble Supreme Court observed in para 13 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.” 11.In light of the aforesaid decisions of the Supreme Court, I am of the considered opinion that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the victim was a minor on the date of offence as the 3 AIR 2023 SC 3525 7 prosecution has utterly failed to prove that on what basis the entry with regard to date of birth has been recorded in the Dakhil Khariz Register (Ex-P/10) Therefore, the finding recorded by the trial Court that the victim was a minor on the date of offence is not in accordance with law. 12.The prosecutrix (PW-1) categorically deposed in her cross-examination that two weeks’ prior to the incident, she came into contact with the appellant. Further, in the cross-examination at para-6, she admits that there is a distance of about 4 km from her village to Railway Station Baradwar and while she was accompanied by the appellant/accused, at no point, she made any hue and cry. Even after the incident, the victim went to the house of her sister (PW-2) at Korba, but did not disclose anything about the incident to her. The victim also admits the fact that she herself asked the appellant to drop her at Railway Station Baradwar. The above conduct of the victim leads to an inference that she appears to be a consenting party. Moreover, the victim has not been proved to be minor on the date of the incident, therefore, the conviction recorded by the trial Court is erroneous and not correct. 13.Considering the evidence available on record, this Court is of the opinion that the prosecution has failed to establish the charges against the appellant beyond reasonable doubt, therefore, in such circumstances, he is entitled for acquittal by giving him the benefit of doubt. 14.Accordingly, the Appeal is allowed and the impugned judgment of conviction and order of sentence is set-aside and he is acquitted of the said charge. The appellant is in jail. He be released forthwith if not 8 required to be detained in any other case on his furnishing a personal bond in sum of Rs.25,000/- to the satisfaction of the trial Court. He shall appear before the High Court as and when directed. The bail bonds furnished by the appellant shall remain in operation for a period of six months in view of the provisions contained under Section 437-A of the Cr.P.C. Sd/- (Deepak Kumar Tiwari) Judge Priyanka