1 2025:CGHC:51808 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on :07.10.2025 Judgment Delivered on :17.10.2025 CRA No. 263 of 2022 Dharamraj @ Pintu Patel Son Of Ramawatar Patel, Aged About 28 Years R/o Village Pipariya, Ward No. 2, Khairagarh, Police Station And Tahsil Khairagarh, District Rajnandgaon Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through District Magistrate Rajnandgaon, District Rajnandgaon Chhattisgarh. ... Respondent For Appellant : Mr. Roop Ram Naik, Advocate For Respondent/State : Ms. Anuradha Jain, Panel Lawyer (Hon’ble Shri Justice Naresh Kumar Chandravanshi) CAV JUDGMENT 1. This criminal appeal has been preferred under Section 374(2) of the CrPC against judgment of conviction and order of sentence dated 02.12.2021 passed by Upper Sessions Judge, Khairagarh Distt. Rajnandgaron (CG) in Special Session Case No.26/2020, whereby the learned Upper Sessions Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.10.17 17:51:49 +0530 2 Sl. No. Conviction under Section Jail Sentence Fine Sentence Default stipulation 01. 7/8 of POCSO Act RI for 05 years Rs.1000/- RI for 03 months 02. 456 IPC The appellant has been sentenced for offence under Section 7/8 POCSO Act, therefore, in view of Section 42 of POCSO Act, he has not been sentenced for these offences. 03. 354(A)(1)(i) IPC 2. The case of the prosecution, in brief, is that complainant/mother of the victim made a complaint (Ex-P/1) in Police Station Khairagargh to the effect that on 20.11.2020, with intention to outrage the modesty of her minor daughter, aged about 16 years, the accused Dharamraj Patel, who is resident of Pipriya village entered into her house by jumping from the window at about 9.00 pm and caught hold the hands of her minor daughter and tried to molest her. When her daughter screamed and rushed towards her and on seeing her, the accused fled away from the spot. Father of the accused was informed about the said incident, but it had no effect on him. The accused used to trouble her minor daughter therefore, they are scared of him. Based on the complaint, FIR (Ex-P/2) for the offence under Sections 354, 354(A), 456 IPC and Sections 7/8 of the POCSO Act has been registered against the accused/appellant. Spot map was prepared vide Ex-P/3, statement of the witnesses were recorded. Statement of the victim under Section 164 CrPC was recorded before Upper Chief Judicial Magistrate, Khairagarh vide Ex-P/8. Marksheet of Class X of the victim was seized vide Ex-P/5. True copy of Dakhil Kharij register (Ex-P/11c) of the victim was seized from Govt. Primary School, Naveen Pipariya vide Ex-P/9. The accused/appellant was arrested on 22.11.2020 vide Ex-P/10. After completion of investigation, charge sheet under Sections 354, 354(A), 456 IPC & Section 7/ 8 of POCSO Act was filed before Upper Sessions Judge, Khairagarh. 3 3. The learned Upper Sessions Judge framed charges under Sections 456, 354(A)(1)(i) IPC and Sections 7/8 of the POCSO Act against the appellant, who denied the charges and claimed for trial. 4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 10 witnesses and exhibited 18 documents. Statement of accused/appellant under Section 313 CrPC was recorded, in which he denied the incriminating circumstances appearing against him and pleaded innocent. No witness has been examined by the appellant/accused. The trial Court upon appreciation of oral and documentary evidence available on record, vide its judgment dated 02.12.2021 finding the evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused as mentioned in the opening paragraph, against which, this appeal has been filed by him. 5. Learned counsel for the appellant submits that the learned trial Court has held the victim as minor only on the basis of Dakhil Kharij Register of the victim, however, father of the victim has stated that age of the victim was recorded in the Dakhil Kharij Register only on the basis of assumption, therefore, date of birth entered in the Dakhil Kharij Register cannot be relied upon. He further submits that though as per the case of the prosecution, Class X marksheet of the victim was seized, but the original marksheet was neither filed nor proved, hence, it also cannot be relied upon. He would next submit that FIR was lodged after two days from the date of incident and plausible explanation in this regard has not been extended by the father of the victim. He further submits that there is no eye witness to the incident, rather as per the case of the prosecution itself, parents of the victim came to the spot later on. It is further submitted that there is material contradictions 4 and omissions with regard to alleged molestation in the deposition of the victim and her statement recorded under Section 161 & 164 CrPC. He further submits that it has also not proved that the victim was minor on the date of the incident, rather she was on the verge of majority, therefore, he submits that the prosecution has failed to prove its case beyond reasonable doubt, hence, the appeal may be allowed by setting aside the impugned judgment and the appellant/accused may be acquitted of all the charges. 6. Learned Panel Lawyer, appearing for the State supports the impugned judgment. 7. I have heard learned counsel for the parties, considered their rival submissions made and also went through the record of the trial Court with utmost circumspection. 8. First of all, the question which arises for consideration is as to whether the victim/prosecutrix (PW-2) was minor on the date of incident? 9. In this regard, the victim (PW-2) has stated that her date of birth is 21.10.2004, her mother (PW-1) has stated that victim born in the month of October 2004. Father of the victim (PW-3) has not stated date of birth of the victim in his deposition, rather in cross-examination para 7, he has admitted that the victim was got admitted in Class-I at the age of 07 years. He has also admitted that he had not got prepared the birth certificate of the victim, rather while admitting her in Class-I in the school, her date of birth was mentioned on the basis of assumption. 10. To prove the date of birth of the victim (PW-2), Dakhil Kharij Register (Ex-P/11C) was seized by the investigating Officer (PW-10) from Santosh Joshi (PW-7), who is incharge Headmaster of the Govt. Primary School Naveen Pipariya, Khairagarh. As per the Dakhil Kharij Register (Ex- 5 P/11C) date of birth of the victim is 21.10.2004. Mother of the victim (PW-1) has stated in his deposition that the police seized Class X marksheet of the victim from her vide seizure memo Ex-P/5, which has also been supported by her husband (PW-3), but that original marksheet of Class X has neither been produced nor proved by the prosecution before the trial Court. 11. Except Dakhil Kharij Register (Ex.P/11C), no documentary evidence has been produced by the prosecution to prove the date of birth of the victim. Though in the Dakhil Kharij Register, date of birth of the victim is mentioned as 21.10.2004, which has also been supported by the victim (PW- 2) herself and upto some extent by her mother (PW-1), but father of the victim (PW-3) himself has admitted in the cross-examination that aforesaid date of birth of the victim was recorded in the school record on the basis of assumption. He has also stated that the victim was got admitted in the school at the age of 07 years and at the time of the incident, the victim was studying in Class-XI. Generally, a student is admitted to school after completing the age of 6 years. Therefore, on this count, it is found that age of the victim was about 18 years at the time of the incident. Thus, since, except Dakhil Kharij Register, no cogent evidence has been exhibited by the prosecution to prove the actual date of birth of the victim, therefore, only on the basis of entry made in the Dakhil Kharij Register, it cannot be held that the victim was minor on the date of incident. 12. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under :- “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied 6 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 the age was recorded.” 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 para 29:- “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 aurthorised 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 require 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. 7 15. Reverting to the facts of the instant case, as has been discussed above, to prove the date of birth of the victim, except Dakhil Kharij Register, no other valid documents, as has been contemplated under Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, has been filed or proved by the prosecution and date of birth of the victim was got recorded in the school record on the basis of assumption as has been deposed by father of the victim in his cross-examination, therefore, in view of the discussion made in the preceding paragraphs, it is found that the learned trial Court, without any valid lawful evidence, has held the victim minor in the impugned judgment, which is found to be perverse and illegal, hence, the same is deserves to be set aside. 16. So far as the conviction of the appellant with regard to sexual harassment upon the victim by trespassing in her house is concerned, the victim (PW-2) has stated in her deposition that at the time of the incident, she was sitting in the hall of their house, at that time, the appellant entered in their house by jumping through window and tried to hold her hand with ill intention. Therefore, she called her mother then the appellant ran back out the same window. Thus, in the Court statement she has not stated that the appellant had hold her hand or pulled her as has been stated by her in her statement recorded under Section 164 CrPC (Ex-P/8) and police statement (Ex-P/2). 17. PW-1 is mother of the victim. She has projected herself to be the eye witness supporting the deposition of the victim. She has deposed that on hearing the screams of the victim, she went to the spot and saw the appellant running through the window of their house. But in the cross-examination para 11 she has specifically admitted that she had not seen the incident as she was preparing meals at that time. She has further stated in her deposition that earlier also the appellant had molested the victim, abused and 8 threatened to kill her father, therefore, being harassed, they had stopped the victim from going to tuition. But this fact has neither been stated by her in her statement recorded under Section161 CrPC nor aforesaid fact got supported by the victim herself. 18. The victim (PW-2) and her mother (PW-1) have stated that when the appellant was running from their house then father of the victim and his brothers caught the appellant from the field by chasing him. This fact also got support from father of the victim (PW-3), Bhushan Verma (PW-4), who is distant relative of the victim, Manik Ram Verma (PW-5), who is paternal uncle (bada papa) of the victim, Devendra Verma (PW-6), who is cousin brother of the victim, as they have stated that when the appellant was running from the house of the victim, that time on hearing the screaming of father of the victim, they followed him and caught the appellant near the canal. They have also stated that father of the victim told them that the appellant molested the victim after entering their house. 19. Perusal of the court statement of the victim and her mother as well as their police statement recorded under Section 161 CrPC and statement of the victim recorded under Section 164 CrPC show that there are material contradictions/inconsistencies as the victim has only stated in her deposition that after entering their house, the appellant tried to hold her hand, but in the police statement and statement under Section 164 CrPC, she had stated that the appellant hold her hands, whereas her mother has stated that after holding the hand of the victim, the appellant also pressed her hand and molested her. As per her cross-examination para 11 that she had not seen the incident, but in the examination in chief she has projected herself to be the eyewitness, who had seen the appellant running and jumping from the window of their house. There is also exaggeration in her deposition as she 9 has stated that earlier also the appellant had molested the victim, abused and threatened to kill her father and therefore, they had stopped the victim from going to tuition. Though father of the victim (PW-3), Bhushan Verma (PW- 4), Manik Ram Verma (PW-5), Devendra Verma (PW-6), have stated that they chased the appellant and caught him but no independent witnesses have been examined by the prosecution to support this version, whereas, many houses situate near the house of the victim. 20. Perusal of the deposition of the father of the victim (PW-3), Bhushan Verma (PW-4), Manik Ram Verma (PW-5), Devendra Verma (PW- 6), it is found that the victim was in love affair with the appellant and he had also given mobile phone and SIM to her which were returned by the family members of the victim and they had also made to understand the appellant and his family members not to involve in such activities. Thus, from aforsaid evidence it is clear that the victim was in love affair with the appellant and they used to talk over the mobile phone which was given by the appellant. It is also found that when the family members of the victim came to know about aforesaid fact, then they objected the same. Having considered aforesaid facts and omission and discrepancies found in various statement of the deposition of the victim and her mother and further considering the fact that all the material witnesses examined by the prosecution are interested witnesses, it cannot be held proved beyond reasonable doubt that the appellant had entered in the house of the victim and molested her. But the learned Special Court without considering aforesaid fact and evidence adduced by the prosecution in its true perspective, in the facts and circumstances of the instant case, has convicted the appellant and sentenced him which is found to be perverse and illegal. Hence, I feel inclined to allow this appeal. 10 21. Consequently, the appeal is allowed. Conviction and sentence imposed on the appellant under Section 7/8 of POCSO Act and Sections 456 and 354(A)(1)(i) IPC are set aside and he is acquitted of the said charges on the basis of benefit of doubt. 22. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 06 months from today in view of the provisions contained uner Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 23. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. 24. The Criminal Appeal is allowed. Sd/- (Naresh Kumar Chandravanshi) Judge Bini