1 2025:CGHC:50397 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 903/2022 Dinbandhu Yadav S/o Rajendra Yadav, Aged About 28 Years R/o Basin, P.S. Suhela, District : Balodabazar-Bhathapara, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Police Station Suhela, District : Balodabazar- Bhathapara, Chhattisgarh ... Respondent For appellant : Mr. Tapan Chandra, Adv. For Respondent/State : Ms. Mukta Tripathi, Panel Lawyer. (Hon’ble Mr. Naresh Kumar Chandravanshi, J ) Judgment on Board 9/10/2025 1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 31-5-2022 passed by Upper District and Sessions Judge, FTSC (Protection of Children from Sexual Offences Act, 2012) Bhatapara, District Balodabajar-Bhatapara (henceforth referred to as ‘trial Court’) in Special Criminal Case No. H-09/2020, whereby the learned Special Judge, after holding the appellant/accused guilty, convicted and sentenced him in the following manner :- Conviction under Section Jail Sentence Fine Sentenc e Default stipulation 376(2-N), IPC RI for 10 years Rs. 500/- RI for 1 month 6, POCSO Act RI for 10 years Rs. 500/- RI for 1 month Digitally signed by AVANISH KUMAR PATHAK Date: 2025.10.15 10:55:05 +0530 2 2. The case of the prosecution, in brief, is that, prosecutrix submitted a written application (Ex. P-3) against the appellant/accused to the effect that, when she was studying in class 9th and was a minor, appellant, a resident of village Basin, made acquaintance with her, expressed his love for her and said that he will marry her, after which both of them fell in love. Appellant first came to her on 01 August 2012 at around 11:00 pm, when her parents had gone out of the house and said that he will marry her and made physical relation with her and since then he has made physical relation with her several times, saying that, he will marry her after her attaining the age of 18 years. Even after attaining the age of 18 years, he has made physical relation with her. On 30.10.2019 also, he had a physical relation with her. In the month of December, 2019, he told her that he has married with another of his society. The appellant has refused to marry her and threatened to kill her. Based on her complaint, FIR (Ex. 4) was registered against appellant under Sections 376, 506 of IPC and Section 6 of the Protection of Children from Sexual Offences Act (henceforth referred to as ‘POCSO Act)’. During investigation, Spot map Ex. P-5 and Ex. P-6 were prepared by police and Patwari. Vide seizure memo (Ex. P-7) mark sheet of Class 5th of Prosecutrix, one photograph and one underwear was seized from prosecutrix by police, vide seizure memo (Ex. P-8), one Mangalsutra, one ring and one key ring were seized from the prosecutrix. One Dakhil Kharij register of Primary School, Basin and one Halafnama register of Govt. Naveen School, Basin were seized from Amarnath Dhruw, Head Master (P.W. 3) of Govt. Primary School, Basin vide Ex. P-11. Underwear of the appellant was seized vide Ex. 3 P-13. Statement of prosecutrix was recorded under Section 164 of the Cr. P.C. The victim/prosecutrix was examined by Dr. Puja Gaikwad (P.W. 8), in which, vide Medical report (Ex. P-18), she opined that, she found no signs of any injury on her private part and definite opinion cannot be given about sexual intercourse. She prepared two vaginal slides and vaginal swab of the victim/prosecutrix for medical examination. Appellant/accused was also medically examined by Dr. Parasnath Patel (P.W. 5), who opined vide his report Ex. P-16 that he is unable to say that appellant is incapable to perform sexual intercourse. Statements of witnesses were recorded under Section 161 of the Cr.P.C. The accused was arrested vide Ex. P-20. The seized articles vaginal slides (Article A), swab (Article B), underwear (Article C) of the prosecutrix and underwear (Article D) of the appellant were sent for chemical examination. Vide FSL report Ex. P- 29, it was opined that, semen stains and human spermatojoa have not been found in above articles. 3. After due investigation, a charge-sheet under Sections 376, 506 of the IPC and Section 6 of the POCSO Act was filed by the police before the Trial Court against the appellant/accused. 4. Charges under Section 376(2-N), 506-II of the IPC and Section 6 of the POCSO Act were framed against the appellant/accused, who abjured his guilt and claimed trial. 5. In order to prove the guilt of the appellant/accused, the prosecution examined as many as 12 witnesses and exhibited 29 documents, and Article A-1C (Dakhil Kharij Register) and Article A-2C. Statement of the 4 appellant/accused under Section 313 of the Cr.P.C. was recorded in which, he denied all the circumstances appearing against him, pleaded innocence and false implication, but he has not examined any witness in his defence. 6. Learned trial Court after appreciating the evidence adduced by the prosecution, acquitted appellant/accused of the offence under Section 506-II of the IPC but convicted him under Section 376(2-N) of the IPC and Section 6 of the POCSO Act and sentenced him as mentioned in opening paragraph of this judgment. Hence, this appeal. 7. Learned counsel for the appellant/accused would submit that, learned Trial Court has held the victim minor on the date of 1st incident i.e. on 1-8-2012, but as per case of prosecution and statement of victim herself, relation between the victim and the appellant was from 1-8- 2012 to 30-10-2019 i.e. from her age of minority to after attaining the age of majority. The trial Court has held the prosecutrix minor on the basis of date of birth of prosecutrix mentioned in her mark sheet of Class 5th and Dakhil Kharij register, but it has not been proved by the prosecution, as to on what basis, said date of birth in the school was recorded and who got recorded the same. He further submits that, there was no false promise of marriage by the appellant. Even if it was there, then as per the deposition of prosecutrix in para 18, she attained the age of majority in month of November, 2014, therefore she could have broken her relation with the appellant or at that time, she might have lodged report against him, but even after attaining the age of majority, for about 5 years, she maintained their relation, therefore, it 5 cannot be said that the appellant raped her, rather it was a consensual relation between them. Except oral version, no cogent evidence has been produced by the prosecution to prove the fact that, prior to her attaining the age of majority, appellant had sexually exploited her, therefore, conviction of appellant for the offence under Section 376(2- N) of IPC and Section 6 of the POCSO Act is pervese and illegal. Hence, the appeal may be allowed and the appellant/accused may be acquitted. 8. Per contra, learned counsel appearing for the State would support the impugned judgment and submits that, though it was a long relation between victim/prosecutrix and appellant/ accused, but consent of victim was obtained under mis-conception of fact of marriage, therefore, in such condition, it cannot be termed as consent and free will of victim. The impugned judgment of the trial Court is based on the evidence available on record, which does not suffer from any perversity or illegality. 9. I have heard learned counsel for the parties and perused the material available on record of the trial Court. 10. In the POCSO case, the age of the prosecutrix is the most important aspect. The manner & procedure to determine the age of minor / juvenile has been contemplated in Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth, JJ Act, 2015), which reads thus :- “ 94. Presumption and determination of age - 6 (1) xxx xxx xxx (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age deter- mination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matricula- tion 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 au- thority 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 Commit- tee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.” 11. Hon'ble Supreme Court while emphasizing the aforesaid provision in the cases of Omprakash Vs. State of Union of India (Criminal Appeal No. 4229 of 2024, decided on 8 th January, 2025 ) and Rajni Vs. State of Uttar Pradesh (2025 LiveLaw (SC) 602) has held that age of the minor should be determined 7 according to Section 94 of the JJ Act, 2015, which is a reiteration of Rule 12 of the Juvenile Justice (Care & Protection of Children), Rules, 2007, which mandates the explicit outline, a sequence for determining a person’s age i.e. date of birth certificate from a School, or matriculation / equivalent certificate from the concerned examination Board, if available; and in the absence thereof; a birth certificate given by a Corporation or Municipal Authority or a Panchayat. And only in the absence of above document, 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. 12. In the matter of Gorkhi Vs. State of UP [(2006) 5 SCC 584], Hon’ble Supreme Court has observed in para-26 as under :- “26. In Birad Mal Singhvi v. Anand Purohit {1988 Supp SCC 604} this Court held: (SCC p. 619, para 15) “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 official 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 official 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 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 8 the age was recorded.” (emphasis supplied) 13. Same proposition was reiterated in the matter of Babloo Pasi Vs. State of Jharkhand and another [(2008) 13 SCC 133] wherein the following material observations were made at paras-28 and 29:- “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 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 Vs. Anand Purohit). 29. ……………………………...in the absence of evidence to show on what material the entry in the voters' list in the name of the accused was made, a mere production of a copy of the voters' list, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused…………………………...” 14. Further, in the matter of Madan Mohan Singh and Others Vs. Rajni Kant and Another [(2010) 9 SCC 209], it was observed that the entries made in the official record by an official or person authorised in performance of official duties may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/ school leaving certificate 9 required to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 15. In the instant case, as per case of the prosecution, the victim was minor on the date of first incident i.e. 1-8-2012. P.W. 1 is the mother of the prosecutrix, she has stated that she cannot tell the date of birth and age of prosecutrix. Prosecutrix (P.W. 2 ) has stated that her age at the time of incident was about 15 – 16 years. The appellant has sexually exploited her first time on 1-8-2012 and last time on 30-10-2019. She has further deposed that police have seized her marksheet of class 5th, in which her date of birth is mentioned as 8-11-1996. In cross- examination, she has deposed that, she has told her date of birth on the basis of mark sheet. P.W. 4, father of prosecutrix has deposed that he cannot tell the date of birth of the prosecutrix. In para 10 of cross- examination, he has deposed that, he is telling the date of birth of the victim on the basis of school record. He has further stated that he had not gone to school for admission of victim, rather his brother Bhojram had gone and Bhojram is not a literate person. Hemlal Patre (P.W. 10) and Gajeshwar Prasad Dhritlahre (P.W. 12) have not said anything about age of the prosecutrix. Amarnath Dhruv (P.W. 3) is Head Master of Primary School, Basin. He has proved seizure memo (Ex. P-11) of Dakhil Kharij register (Article A-1-C) and Halafnama register (Article A- 2-C). In cross-examination, he has admitted that he made entry in both the aforesaid documents and the same has not been got done by father and mother of the prosecutrix, the same has been got done by 10 her Bade Pita. 16. From perusal of the evidence of father (P.W. 4) of the prosecutrix, it is found that he had not gone to admit the victim in school, his brother had gone. His brother has not been examined. Amarnath Dhruw (P.W. 3), Head Master, has also stated that mother and father of prosecutrix had not got done entry in Dakhil Kharij register, rather her Bade Pita had done it, but he has not been examined. The victim and her father have stated that they are telling the date of birth of the prosecutrix as per school record/mark sheet. Therefore, the date of birth of the prosecutrix is not proved and it cannot be held that, the victim was minor on the date of incident and, therefore, the appellant is entitled to get the benefit of doubt in this regard. 17. About physical relation, the prosecutrix has stated that the appellant has been making physical relation with her for about 8 years on the pretext of marriage. When he refused to marry her, the report was lodged against the appellant. Mother (P.W. 1) has deposed that appellant kept the victim for 2 – 3 years, but later he refused. Father (P.W. 4) of the prosecutrix has also stated that, family member of the appellant had refused to keep the victim, then he lodged report. FSL report is also negative. Since the relations of appellant and victim were continued for about 8 years, therefore, it can safely be held that it was a consensual relation. 18. Recently, in the case of Prithivirajan Vs. State, represented by Inspector of Police and Another (2025 SCC OnLine SC 696), while 11 considering similar case, Hon’ble Supreme Court has held in paragraphs 6 and 7 as under :- “6. This Court has time and again reiterated that only because physical relations were established based on a promise to marry, it will not amount to rape. For the offence of rape to be attracted, the following conditions need to be satisfied : first, the accused promised to marry the prosecutrix solely to secure consent for sexual relations without having any intention of fulfilling said promise from the very beginning; second, that the prosecutrix gave her consent for sexual relations by being directly influenced by such false promise of marriage. [See : Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608; Mahesh Damu Khare v. State of Maharashtra 2024 SCC OnLine SC 3471] 7. The instant case is one of consensual relationship between the appellant and prosecutrix. Even otherwise, it does not appear from the record that the initial promise to marry allegedly made by the appellant was false to begin with. Perusal of FIR itself suggests that the alleged promise to marry could not be fulfilled by the appellant due to intervening circumstances. Consequently, the relationship ended because of which the present FIR came to be registered. Under these circumstances, letting the appellant face trial would be nothing short of an abuse of the process of the Court. This cannot be permitted.” 19. In another recent decision of the Hon’ble Supreme Court in the case of Jothiragawan Vs. State Represented by Inspector of Police and another (2025 SCC OnLine SC 628), where, the accused and victim/ prosecutrix were relative, the couple had sexual intercourse thrice. On 12 17.04.2021, they took a room in a hotel where according to the victim/prosecutrix, there was an ‘abrupt and unexpected’ sexual intercourse, under coercion against her wish. Again on the pretext of discussing marriage, the accused called the victim/prosecutrix and she willingly accompanied him to the very same hotel where they had an intercourse and thus again the victim/ prosecutrix was coerced into a sexual intercourse. After both instances the victim/prosecutrix was mentally upset but this did not prevent her from still again going to the very same hotel at the request of the accused, a third time. Thereafter he refused to solemnize their relationship by a valid marriage. In these circumstances, the Hon’ble Supreme Court held that “the criminal proceedings initiated against the present appellant/accused are nothing but an abuse of process of the court. This is precisely a case where the High Court should have interfered in exercise of its inherent and extraordinary powers under Section 482 of the Cr. P.C. These proceedings cannot go on.” 20. In view of aforesaid law rendered by Hon’ble Supreme Court, if facts of instant case are examined, then as has been discussed above in preceding paragraphs, it is a case of consensual physical relation between the victim and appellant/accused for a long period of 8 years. Relation for such a long period cannot be given colour of rape. After attaining the age of majority in the month of November, 2014, she could have broken relation with appellant, or at that time, she could have lodged report against him, but she lodged report after about 5 years of attaining the age of majority, which goes to show that, it was a 13 consensual relation. In view of the above discussion, in the considered opinion of this Court, the impugned judgment of conviction and order of sentence passed by the trial Court against the appellant/accused convicting him under Section 376(2-N) of the IPC and Section 6 of the POCSO Act is not sustainable. Hence, I feel inclined to allow instant appeal. 21. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant/accused by the impugned judgement under Section 376(2-N) of the IPC and Section 6 of POCSO Act are set aside and he is acquitted of the said charges. The appellant/accused is on bail. He need not surrender. The bail bonds furnished by the appellant/accused shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. 23. The Criminal Appeal is allowed. Sd/- (Naresh Kumar Chandravanshi) Judge pathak