1 2025:CGHC:8020-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1990 of 2019 Kalamsai Agariya, S/o Deosai, aged about 20 years, R/o Village- Bedmi, Police Station- Ramkola, District- Surajpur, Chhattisgarh ... Appellant versus State of Chhattisgarh, Through- Station House Officer, Police Station- Odgi, District- Surajpur, Chhattisgarh ... Respondent For Appellant : Mr. Amit Singh Chouhan, Advocate For Respondent/State : Mr. HAPS Bhatia, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (14.02.2025) Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.02.20 17:56:33 +0530 2 Sanjay Kumar Jaiswal, J. 1. Invoking criminal jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 26.11.2019 passed by the learned Additional Sessions Judge (Fast Track Court), Surajpur, District Surajpur (C.G.), in Sessions Trial No. 07/2019, by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 363 of the IPC RI for 7 years and to pay fine of 100/-; in default of ₹ payment of fine, additional RI for 1 month U/s 366 of the IPC RI for 10 years and to pay fine of 100/-; in default of ₹ payment of fine, additional RI for 1 month U/s 376 (3) of the IPC RI for 20 years and to pay fine of 100/-; in default of ₹ payment of fine, additional RI for 1 month U/s. 6 of the POCSO Act, 2012 RI for 10 years and to pay fine of 100/-; in default of ₹ payment of fine, additional RI for 1 month All the sentences are directed to run concurrently 2. It is an undisputed fact that the victim of the case (PW-1) is 3 the sister-in-law of the appellant. The elder sister of the victim was married to the appellant. The victim is resident of village Palkewara while the appellant is resident of village Bedmi, PS-Ramkola, District-Surajpur and at the time of incident, the sister of the victim i.e. the wife of the appellant was not at her in-laws house with her husband but at her parents house. 3. The prosecution case in brief is that on January 12, 2019, at around 7:00 PM, the victim (PW-1) was at home but left without informing anyone. When she did not return, her father (PW-2) became suspicious that his son-in-law, Kalamsay, might have taken her away. He and his wife went a short distance from their home towards the main road leading to Bank Ghat, where streetlights were on. There, they saw Kalamsay taking the victim on his motorcycle. When they tried to stop him, he did not stop. The incident was reported by the victim’s father on January 16, 2019, at Odgi Police Station. Based on this report, Odgi Police Station registered an FIR under Section 363 of the IPC against the Appellant. A site inspection map of the crime scene was prepared, and the victim underwent medical examination and genital assessment conducted by Dr. Suchita Nirmala Kindo (PW-6). Two vaginal slides of the victim were collected and sealed separately in two sealed packets with white paper. After recording statements of 4 witnesses, the appellant was arrested. On completion of whole investigation, charge sheet was filed. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 8 witnesses and exhibited 15 documents. Statement 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. 5. After hearing both the parties, the trial Court passed the impugned judgment of conviction and order of sentence. 6. Learned counsel for the appellant submits that the victim (PW-1) was a consenting party who willingly stayed with the appellant at his house. The prosecution has failed to prove through valid evidence that the victim was minor and below 18 years of age at the time of alleged incident. The date of birth of the victim could not be proved. It has not been proved as to on what basis the date of birth was recorded in her school's Dakhil Kharij register. The victim's father has also been unable to tell the date of birth of the victim. Thus, it has not been proved that the victim was below 18 years of age at the time of the incident. In such a situation, no offence under Sections 363, 366, 376 (3) of the Indian Penal Code and Section 6 of the POCSO Act can be made out against the Appellant. Therefore, the appeal 5 may be allowed and the impugned judgment may be set aside and the appellant may be acquitted. 7. On the other hand, learned counsel for the State submits that the finding recorded 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. 8. We have heard learned counsel appearing for the parties and perused the record with utmost circumspection. 9. In this case, apart from the victim (PW-1), the statements of her father Jaipal (PW-2), the appellant's co-brother Raja Ram (PW-3), the victim's elder sister i.e. the appellant's wife Lakhpatiya (PW-4) are important. In their evidence, it has come out clearly that in the knowledge of all these family members, the appellant had taken the victim (PW-1) with him from her house on a motorcycle on the day of the alleged incident and no one had protested then. Even till the victim returned home, no report was made. The appellant has stated that he took the victim on 12/01/2019, the report of which has been registered on 16/01/2019. Doctor Suchita Kindo (PW-6) has stated that 6 the victim was habitual to sexual intercourse and no definite opinion has been given about recent sexual intercourse. Semen stains and human sperm were found in the slide of vaginal discharge of the victim prepared during the medical examination. Consenting Party 10. The victim (PW-1) has clearly stated in her Court statement that after living in her in-laws' house for 6 months after marriage, her elder sister i.e. the appellant's wife Lakhpatiya (PW-4) had returned to her parental house and started living there. On the day of the incident, the appellant came and wanted to take her sister i.e. his wife with him but she did not go. Then the appellant told her that he would take her for a ride and took her on a motorcycle and kept her in his house for 4-5 days and had physical relations with her every night and did not listen to her when she refused. Later, her family members and the police came and took her and the appellant to the police station and then report and investigation were made. In cross-examination, this witness has stated that when she stayed at the appellant's house, the appellant's two younger sisters and his mother also lived with her in that house and there are houses of many other people in the nearby. Next 7 to it is the house of Rambilas and Ramdayal. But she did not make any complaint against the appellant to his family members or anyone in the vicinity. She has also stated that the appellant used to visit their house frequently as he was the son-in-law of the house and the appellant used to stay at their house for a day or two. Thus, the fact that the victim (PW-1) never made any complaint against the appellant shows that she was a consenting party. 11. The father Jaipal (PW-2) has stated in his Court statement that when the appellant took the victim with him on his motorcycle, he was at home and Mangalsai saw the appellant taking her away on the motorcycle. The next day he reported the matter to the police but, the report is of four days later and not of the next day. Thus, it is clear that father of the victim (PW-2) was aware of the fact that the appellant had taken his second daughter, the victim (PW-1) with him and kept her at home. Thus, it is clearly reflected from the evidence of the prosecution itself that the victim (PW-1) was consenting party. 12. The offence for which the appellant has been convicted will be proved if the prosecution proves beyond doubt that the age of the victim was below 16/18 years on the date of the incident i.e. 12/01/2019 and she was a minor. Since the 8 victim has been found to be a consenting party, in such a situation, the burden of proving the said offence is on the prosecution that the prosecutrix was below 16/18 years on 12/01/2019. Age Determination 13.It is a natural thing that any child gets to know her/his date of birth either from her/his guardian or on some documentary proof. Only her/his guardians have the correct information about her/his date of birth. In this case, to prove the age of the victim (PW-1), the Dakhil Kharij register (Exhibit P-7) of Government Primary School Palkewara, Block-Odgi has been produced, according to which the date of birth of the victim is recorded as 07/08/2003. The incident is said to have taken place on 12/01/2019. If calculated from the said date of birth of the victim, then the age of the victim was more than 15 years and less than 16 years on the date of incident. The prosecution has to prove this fact beyond doubt that the victim was a minor and she was below 16/18 years of age at the time of incident. In this case, the examination of Head Master Hiralal Vishwakarma (PW-5) has been conducted to prove the Dakhil Kharij register. In their Court statements, the victim (PW-1) as well as her father Jaipal (PW-2) and 9 sister Lakhpatiya (PW-4) were unable to tell the date of birth of the victim. In such a situation, it becomes necessary to assess the evidentiary value of the date of birth recorded in the Dakhal Kharij register. 14. The Supreme Court in the matter of P. Yuvaprakash vs. State Rep. by Inspector of Police, AIR 2023 Supreme Court 3525 has held in paragraphs 14 & 19 as under:- 14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the 10 offence. 19. It is clear from the above narrative that none of the documents produced during the trial answered the description of “the date of birth certificate from the school” or “the matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim’s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW- 9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating “that the age of the said girl would be more than 18 years and less than 20 years”. In the cross- examination, she admitted that M’s age could be taken as 19 years. However, the High Court rejected this evidence, saying that “when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor”. This finding is, in this court’s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim’s bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9. 15. The Supreme Court in the matter of Manak Chand alias 11 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 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.” 12 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.” 16. Hon’ble Supreme 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.” 17. 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 13 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 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 v. Anand Purohit (1997) 4 SCC 24).” 18. 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 14 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.” 19. If we consider the evidence of the case at hand in the light of the above mentioned judgments, it is clear that the entry made in the Dakhil Kharij register is admissible in evidence but, what will be the evidentiary value of that entry depends on the discussion of the evidence and it is necessary for the prosecution to prove beyond doubt that the age of the victim was less than 16/18 years at the time of the incident. 20. In this case, the victim (PW-1) herself has failed to give any date of her birth. Her father got her admitted in the school. Both her elder sisters are married, the husband of one sister is the appellant. Head Master Hiralal Vishwakarma (PW-5) has certified the Dakhil Kharij register (Exhibit P-7) and has stated that he had issued the certificate vide Exhibit P-8 regarding the victim's date of birth on the basis of Dakhil Kharij register and when the 15 victim was admitted in the school by her father, he was the Head Master. He has admitted in cross-examination that at the time of admission of the victim, no certificate was given regarding the victim's date of birth, rather the victim's date of birth was recorded on the basis of the date stated verbally. It is not clear from the statement of Head Master Hiralal Vishwakarma (PW-5) as to who told this date, because he has stated that the victim's admission was done by family member. He has also not clarified the name of the victim's family member. Thus, it is not clear from the statement of Hiralal Vishwakarma (PW-5) as on what basis, the date of birth of the victim was recorded in the Dakhil Kharij register (Exhibit P-7). 21. The victim (PW-1) has stated that her father had gone to get her admitted to school and the father Jaipal (PW-2) has stated that he had gone to get the victim admitted to school, but the father has also been unable to tell the date of birth and has only stated that he had enrolled the victim in school when she was 5 years old. In cross-examination, the father (PW-2) has stated that he had given the birth certificate at the time of admission of the victim. But, Hiralal Vishwakarma (PW-5) has not confirmed this fact. The father (PW-2) has clearly accepted that he had not told the victim's date of birth verbally at the time of admission. 16 He has also accepted that both the girls elder to the victim are married and the victim has also failed once or twice during her studies. At the time of Court statement, the father has definitely failed to tell how old the victim was. The victim's sister (PW-4) has also stated that she herself is 24 years of age and the victim is 1-2 years younger than her. If we believe the statement of the sister, then the victim is 2 years younger than her i.e. 22 years of age. 22. Thus, neither the victim nor her parents were able to tell the date of birth of the victim. No certificate was produced by them at the time of admission in the school. Head Master Hiralal Vishwakarma (PW-5) has stated that he had recorded the date of birth of the victim (PW-1) on the basis of oral information given by the family who got her admitted. Whereas the admission is said to have been done by the father (PW-2) and the father has stated that he had not given any oral information about the date of birth. In the light of all these facts and evidence, the date of birth of the victim recorded in Dakhil Kharij register (Exhibit P-7) becomes doubtful. Thus, the prosecution has failed to prove beyond doubt that the date of birth of the victim was 07/08/2003 and she was below 16/18 years at the time of the incident. 17 23. In this situation, when the victim was consenting party, and it is not proved beyond doubt that at the time of incident, she was below 16/18 years of age then the offence under Sections 363, 366, 376 (3) of the IPC and Section 6 of the POCSO Act is not proved. In such a situation, the impugned judgment is not sustainable. 24. In view of the aforesaid discussion and in light of the above referred judgments, the appeal is allowed and the impugned judgment is hereby set aside. The appellant is acquitted of the said charges. It is reported that the Appellant is in jail. He shall be set at liberty forthwith, unless he is required to be detained in connection with any other offence. 25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court and a copy of this judgment be also supplied to the concerned Superintendent of Jail forthwith, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham