1 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1333 of 2017 Judgment Reserved on: 29.10.2025 Judgment Delivered on: 04.11.2025 Ravi Yadav, S/o Tulsiram Yadav, aged about 24 years, R/o Gharipakhna (Manpur), Police Station Katghora, District Korba, Chhattisgarh ... Appellant versus State of Chhattisgarh, Through Station House In-charge, Adim Jati Kalyan Thana, Korba, District Korba, Chhattisgarh ... Respondent And CRA No. 1372 of 2017 Rockey @ Rakhi Yadav S/o Babulal Yadav, Aged About 22 Years R/o Gharipakhana Manpur , Police Station Katghora, District Korba, Chhattisgarh. ---Appellants Versus State of Chhattisgarh Through Station House Officer, Police Station Ajak Korba, Civil And Revenue District Korba, Chhattisgarh --- Respondent(s) SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.11.04 16:56:29 +0530 2 For Appellants : Mr. Vimlesh Bajpai, Advocate For Respondent/State : Mr. Ankur Kashyap, Dy. G.A. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal CAV Judgment Sanjay Kumar Jaiswal, J. 1. Both the above appeals being related to the same crime number and judgment, therefore, they are being decided by this common judgment. 2. (i) Invoking criminal jurisdiction of this Court under Section 374(2) of the CrPC, the appellants herein have preferred these criminal appeals calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 31.07.2017 passed by the learned Special Judge(SC/ST Act), Korba (C.G.), in Special ST No.13/2015, by which the appellants have been convicted and sentenced as under:- Conviction Sentence & Fine U/s 363/34 of the IPC RI for 3 years and to pay fine of 500/-; in default of ₹ payment of fine, additional RI for 3 months U/s 366 of the IPC RI for 5 years and to pay 3 fine of 500/-; in default of ₹ payment of fine, additional RI for 4 months U/s 376 (d) of the IPC as also U/s. 6 of the POCSO Act, 2012 [However, in light of Section 42 of the POCSO Act, sentenced/punished only U/s 376 (d) of the IPC] RI for 20 years and to pay fine of 10,000/-; in default ₹ of payment of fine, additional RI for 1 year All the sentences are directed to run concurrently 2.(ii) The Trial Court has acquitted the appellants of offence punishable under Sections 3 (2)(v) and Section 3 (1)(xii) of SC/ST (Prevention of atrocities) Act. 3. The prosecution case in brief is that on 18/04/2015, at approximately 8:00 p.m., the accused/appellants took the victim (PW-4) from her home on a motorcycle to village Rawa without the permission or consent of her lawful guardianship. At Budhpal Yadav's house, accused Rocky alias Rakhi forcibly raped her. They then took her to village Binjhra, then Nunera, and then abandoned her in village Dumarmuda, where they fled. Thereafter, when the victim informed Jeevan Singh, the victim's father (PW-7) received the information through Amresh, then he took the victim away. A report was filed at Katghora Police Station, based 4 on which Crime No. 03/2015 was registered at the AJAK Police Station. The victim underwent a medical examination. Prepared slides were sent for chemical analysis. Witness statements were recorded. A scene map was prepared. After completing investigation, the charge sheet was filed. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 29 documents. Statement of the appellants were recorded under Section 313 of Cr.P.C. in which they denied circumstances appearing against them 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 appellants submits that the victim (PW-4) was a consenting party with accused Rockey @ Rakhi Yadav who willingly lived with him at various places. The prosecution has failed to prove through valid evidence that the victim was a minor and below 18 years of age at the time of the alleged incident. The date of birth of the victim could not be proved. There is discrepancy between the victim's stated date of birth, the date of birth recorded 5 in the Dakhil Kharij register, and the date of birth recorded in Marksheet. The teacher who made the entry in the Dakhil Kharij register has not been examined. 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, the said offence cannot be said to be proved. The Counsel further submits that no role has been played by accused Ravi Yadav in the crime in question even the victim did not know accused Ravi Yadav. He had not spoken to her, and she had not gone with accused Rocky at his behest. The victim made no statements regarding the crime against the accused Ravi Yadav. Hence, considering the above, it is prayed that the appeal may be allowed and the impugned judgment may be set aside and the accused/appellants may be acquitted of the charges levelled against them. 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 appellants is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellants is not acceptable, hence, the appeals may 6 be dismissed. 8. We have heard learned counsel appearing for the parties and perused the record with utmost circumspection. 9. From the entire evidence presented by the prosecution, it is clear that according to medical report (Exhibit P-3) of the victim by doctor Mrs. B. Tikka (PW-8), intercourse was committed with the victim. As per argument of learned Counsel appearing for the appellants, it has to be seen whether the conclusion of the trial Court that the victim was a minor being below 18 years of age on the date of the incident is correct and it also has to be seen whether the victim was a consenting party in the case? Age Determination 10. The victim (PW-4) stated her date of birth as 19/08/1998 in her court statement, while the police presented two documents regarding her date of birth in the case. The first is ‘Dakhil Kharij Register’ (Exhibit P-8A), which states the victim's date of birth as 30/08/1999, and the second is the ‘Marksheet’ (Article A), which states the victim's date of birth as 30/08/1998. Thus, the discrepancy between the victim's stated date of birth, the date of birth recorded in the Dakhil Kharij register, and the 7 date of birth recorded in Marksheet renders the evidence presented regarding the victim's age completely doubtful. It is also noteworthy that the victim has not undergone an ossification test. 11. The victim (PW-4) has stated her date of birth as 19/08/1998, whereas her father (PW-7) was unable to tell her date of birth and stated that he had informed the village Kotwar about the victim's birth, but no Kotwari register has been authenticated in the case. Thus, the statements of the victim's father do not support the prosecution's case that the victim was a minor, below 18 years of age, at the time of the incident. 12. Regarding the Dakhil Kharij register (Exhibit P-8A) and marksheet (Article A), Mrs. C. Kindo (PW-5), Principal of Government High School, Rawa, stated that the victim's date of birth, as recorded in Dakhil Kharij register (Exhibit P-8A), was 30/08/1999. Calculating from that date, the victim's age at the time of the incident appears to be approximately 16 years old. Mrs. C. Kindo admitted in cross-examination that the victim's name in the Dakhil Kharij register is not in her handwriting. She also admitted that the Dakhil Kharij register was started in 2011, registering students in Class 9th and 10th. The victim 8 herself stated that she was studying in class 9th at the time of the incident. Thus, it is clear that the Dakhil Kharij register is not a primary school register, but a government high school register. 13. 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 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 9 person in the absence of the material on which the age was recorded. (See: Birad Mal Singhvi v. Anand Purohit (1997) 4 SCC 24).” 14. 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 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.” 15. 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 10 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.” 16. 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. 17. In light of the above cited judgments, considering the entire evidence presented regarding the victim's age, it becomes clear that there is a discrepancy between the victim's stated date of birth and the date recorded in Dakhil Kharij register (Exhibit P-8A) and her marksheet (Article A). Her father was unable to provide a date of birth of the victim. Principal C. Kindo (PW-5) stated that the entry in Exhibit P-8A was not in her handwriting. It is also clear that no primary school register was produced. Mrs. C. Kindo (PW-5) admitted that the entry was made on the basis of her Class 8th mark-sheet and transfer certificate. She also admitted that the transfer certificate does not contain the date of birth. As her father (PW-7) was also unable to tell the exact date of birth of the victim and it is not clear on what basis, the date of birth of 11 the victim was written. Thus, the prosecution failed to properly authenticate the date of birth recorded in Dakhil Kharij register. Based on the above comprehensive evidence, this Court finds that the prosecution has failed to prove that the victim was a minor under the age of 18 on the date of the incident. The finding of the trial Court in this regard is inconsistent with the facts and evidence on record and is therefore not sustainable. Consenting Party 18. The victim (PW-4) stated in examination-in-chief that the accused Rocky alias Rakhi used to drive a tractor in construction of road in her village and used to talk to her when she used to go to school and also used to call her to meet him. In cross-examination, she has admitted that she had developed a love affair with the accused Rocky alias Rakhi. He had called her to meet him near the road at around 7.00 pm in the evening. When she went there, he said that he had come to pick her up. Then both the accused took her on a motorcycle to the house of Budhpal Yadav in village Rawa, where the accused Rocky alias Rakhi had physical relations with her. 19. The victim (PW-4) admitted in cross-examination that she did not know the accused Ravi Yadav. He had not spoken to her, and she had not gone there at his behest, 12 but had first seen him in the alleyway. Thus, the victim made no statements regarding the crime by the accused Ravi Yadav. 20. The victim has admitted that she had a love affair with the accused Rocky alias Rakhi. She has also admitted that she was first taken to village Rawa on a motorcycle where she stayed at Budhpal Yadav's house. Then she was taken to village Binjhara on a bus where she stayed at Hem Singh's house. Then she was taken to village Nunera on his motorcycle where Rocky alias Rakhi was kept at his sister's house. Then he went to village Nava on a motorcycle where he stayed at the house of accused Ravi's sister. Then he took her to village Dumarmuda and accused Rocky alias Rakhi told her that he would come after seeing a bus and she should stay there but accused Rocky alias Rakhi did not return. After that she came on foot to village Binjhara and Godli Para and informed her family members, then they came and took her away. 21. The victim admitted in cross-examination that she neither screamed nor shouted, nor called for help, nor refused to go, nor initially reported the incident to anyone while being transported on a motorcycle or bus. She also stated that she was in a love relationship with the accused, Rocky alias 13 Rakhi, but he left her alone in Dumarmuda, causing her distress and leading her to file a report. Thus, the victim's entire statement clearly indicates that she was a consenting party to the main accused, Rocky alias Rakhi. 22. In view of the aforesaid discussion and in light of the above referred judgments, the appeals are allowed and the impugned judgment of conviction and order of sentence is hereby set aside and the Appellants are acquitted. 23. The Appellants are on bail. They need not to surrender in this case. Their 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. 24. 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