1 2025:CGHC:38235 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 906 of 2005 • Bhagat Ram, aged about 23 years, S/o Guhaled Ram Markandey, R/o village – Mulley, Thana Kurud, Distt. - Dhamtari, C.G. ... Appellant. versus • State Of Chhattisgarh through District Magistrate Dhamtari, Distt.- Dhamtari C.G. ... Respondent. For Appellant : Shri Shubham Tripathi appears on behalf of Shri Awadh Tripathi, Advocates. For State : Shri Dilman Rati Minj, Govt. Advocate. For Complainant : Shri Manish Kumar Sahu, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 04.08.2025 1. This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 is directed against the judgment of conviction and order of sentence dated 30.11.2005 passed by the Additional Sessions Judge, Dhamtari, sessions division Dhamtari, Chhattisgarh in Sessions Case No. 110/2003 whereby, appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 363 of IPC RI for five years and fine of AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.08.05 15:55:38 +0530 2 Rs.100/-, in default of payment of fine, to undergo additional RI for one month. Under Section 366 of IPC RI for five years and fine of Rs.100/-, in default of payment of fine, to undergo additional RI for one month. Under Section 376 (1) of IPC RI for seven years and fine of Rs.100/-, in default of payment of fine, to undergo additional RI for one month. All the sentences were directed to run concurrently. 2. Prosecution case in brief is that on 18.01.2003, at about 11 am, appellant and his relatives (other co-accused persons already acquitted by the trial Court vide impugned judgment) visited the house of victim (PW-5) and stated that both victim and appellant are in love relation, therefore, their marriage may be solemnized but parents of the victim especially father (PW-2) refused for the same, as the victim had not attained the age of majority. Thereafter, accused persons abducted the minor victim from the lawful guardianship of her parents and the present appellant established physical relations with her. Mother of the victim (PW-3) lodged an FIR (Ex.P/11) with the Police Station Kurud, Distt. Dhamtari bearing crime No.32/2003. Victim was subjected to medical examination vide Ex.P/12. Transfer certificate of the victim in which her date of birth was recorded as 14.07.1987 was seized vide Ex.P/13. Appellant 3 was also medically examined and it was found that he was capable to perform sexual intercourse vide Ex.P/20. Patwari prepared the spot map vide Ex.P/1 and sketch map was also prepared vide Ex.P/3. 3. Statement of witnesses were recorded. After completion of investigation, charge sheet was filed before the jurisdictional Magistrate which has committed the matter to the Court of sessions, for trial. 4. During trial, appellant and other co-accused persons abjured their guilt and claimed to be tried. Other co-accused persons namely Chintaram- brother of present appellant, Bahurram, Jhangluram, Rohit, Premlal & Dauvaram were acquitted of the charges under Section 363 and 366 of IPC, however, present appellant was convicted for the offence as mentioned in para 1 of this judgment. 5. Learned counsel for the appellant would submit that the finding recorded by the trial Court is bad in the eye of law, as there is no reliable evidence available on record to ascertain age of the prosecutrix, like primary document, such as Kotwar register or birth certificate, and only the oral statement of the mother of victim (PW- 3) has been relied upon. He submits that despite the aforesaid infirmities, he does not want to press the appeal on merits as victim (PW-5) and the present appellant solemnized marriage and are living peacefully and happily. Out of their relations, 3 children have also been born. A compromise petition has also been filed to this effect by the victim (PW-5) along with affidavit as during the pendency of the 4 case, she attained the majority and reached the age of 25 years. Learned counsel places reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Mahesh Mukund Patel vs. State of UP and Others {2025 SCC OnLine SC 614}, wherein, considering such development it has been observed that continuing the prosecution, in such circumstances, would serve no purpose and it will cause undue harassment to both the parties and their children. 6. Learned counsel for the appellant also submits that during the trial, appellant remained in jail for about 05 months 18 days. Considering such backdrop, this Appeal may be allowed to that extent. 7. Learned State counsel and counsel for the victim would not dispute the fact that both the victim (PW-5) and appellant have married each other and out of their relations, 3 children were also born. 8. I have heard learned counsel for the parties and perused the material available on record with utmost circumspection. 9. In the case at hand, the trial Court only on the basis of oral statement of mother of the victim (PW-3) has ascertained age of the victim. Father of the victim (PW-2) has not stated regarding age of the victim in his examination in chief, however, in cross-examination, he admits that he has not got recorded the date of birth of the victim in the Kotwari register. Similar is the statement of mother of the victim (PW-3). 10. In the present matter, the prosecution has also filed Dakhil Kharij register, however, the same was not proved and the trial Court merely 5 on the basis of oral statement of mother of the victim has recorded a finding that the victim was below 16 years of age on the date of incident. 11. In this connection, the Hon’ble Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana1, has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit2 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. 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.” 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 6 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.” 12. In the matter of P. Yuvaprakash versus State Rep. By Inspector of Police3, 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.” 13. In light of the aforesaid decisions of the Hon’ble 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 3 AIR 2023 SC 3525 7 the prosecution to prove that the victim was minor on the date of offence. Moreover, mere statement of the mother of the victim is not sufficient to determine the age of the victim. 14. It is an admitted position that the victim and the appellant were in love relations. Other relatives of the appellant visited the house of victim (PW-5) and made an offer of marriage which was refused by the father of the victim. In spite of that, the victim managed to reach the house of the appellant and both of them started living as husband and wife and now they have also married with each other and have 3 children out of their relations. From the conduct of the victim, it is apparent that the victim was a consenting party and as such, it would be absolutely risky to maintain the conviction of the appellant and the appellant is entitled for acquittal. 15. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 363, 366 and 376 (1) of IPC are set aside and he is acquitted of the said charges. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 16. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- (Deepak Kumar Tiwari) Judge Avinash