1 2025:CGHC:59913-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 579 of 2017 Awadh Tiwari @ Awadh Prasad S/o Lal Bahadur Tiwari, Aged About 39 Years R/o Village Tilaeband, Keshgaon, Thana Sonhat, District Koriya, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Khadgawa, District Koriya, Chhattisgarh --- Respondent For Appellant : Mr. Parag Kotehca, Advocate For Respondent/State : Mr. Amit Buxy, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (10.12.2025) Sanjay Kumar Jaiswal, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 07.02.2017 passed by learned 2 Special Judge (SC/ST Prevention of Atrocities Act), Baikunthpur, District Koriya (C.G.), in Special Session Case No.01/2016, 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 500/-; in default of ₹ payment of fine, additional RI for 3 months U/s 366 of the IPC RI for 10 years and to pay fine of 500/-; in default of ₹ payment of fine, additional RI for 3 months U/s 506 of the IPC RI for 2 years and to pay fine of 500/-; in default of ₹ payment of fine, additional RI for 3 months U/s 376(2)(i)(j) of the IPC as also U/s. 5-(i)/6 of the POCSO Act, 2012 [However, in light of Section 42 of the POCSO Act, sentenced/punished only U/s 376 (2)(i)(j) of the IPC] RI for 10 years and to pay fine of 500/-; in default of ₹ payment of fine, additional RI for 3 months U/s 3 (2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989 RI for life and to pay fine of ₹500/-; in default of payment of fine, additional RI for 3 months 3 2. In this case, the victim (PW-3), a resident of village Thaggaon, Police Station Khadgavan, District Koria, aged approximately 16 years who also belongs to scheduled tribe. As per prosecution case on 27.12.2014, at around 5:00 p.m., the victim along with her sisters left the house to buy soap and oil at Kaushalesh's grocery store. Around 6:00 p.m., the victim's sisters, returned home and reported that the accused, Avadh Prasad Tiwari, a resident of Keshganwa village, Sonhat, had already parked his motorcycle near the Ghurdhela drain. He grabbed the victim's hand, made her sit on the motorcycle, and drove her toward Dubchhola. Showing them a knife, he also threatened them. Fearing the threat, they did not go to the store and returned home. Upon receiving this information from the victim's sisters, father of the victim went to Dubchhola village, Akhradan, to inquire, but the victim was not found. His daughter/victim is a minor; the accused lured her and abducted her. Based on the above report by father of the victim, K.S. Rathiya, Inspector of Police (PW-9), registered an FIR (Ex. P-1) and an investigation was initiated. The victim was recovered from the possession of the Appellant vide Ex.P-4. Thereafter she underwent for a medical test. After completing the entire investigation, charge sheet was filed. 3. During the course of trial, in order to bring home the 4 offence, the prosecution has examined as many as 13 witnesses and exhibited 22 documents. Statement of the appellant was also recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. After hearing both the parties, the trial Court passed the impugned judgment of conviction and order of sentence. 5. Learned counsel for the appellant submits that the victim (PW-3) was a consenting party with the accused/appellant who willingly lived with him. 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 alleged incident. In such a situation, when the said offence cannot said to be proved, therefore, no offence under Section 3(2)(v) of the SC/ST (Prevention of Atrocities Act) can be made against the Appellant. Hence, considering the above, it is prayed that the appeal may be allowed and the impugned judgment may be set aside and the accused/appellant may be acquitted of the charges levelled against him. 6. 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 5 interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. We have heard learned counsel appearing for the parties and perused the record with utmost circumspection. Age Determination 8. The victim (PW-3) did not state her date of birth in her Court statement. Her father (PW-1) was also unable to provide her date of birth in his Court statement. To prove that the victim was a minor at the time of the incident, the prosecution placed dakhil-kharij register (Ex.P-12C) of Primary School, Thaggaon, of the victim. To verify dakhil- kharij register, Principal, Smt. Suman Sai (PW-7), was examined. She stated that in dakhil-kharij register, the victim's date of birth is registered as 15/07/1998. She stated in her cross-examination that no birth certificate of the victim was produced, on the basis of which the said date of birth was written in dakhil-kharij register. She further stated that there is no mention of the fact that who got victim admitted to Class 1. She herself stated that she was not in school at that time. The victim and her sister were not given admission by this witness. 6 9. How, dakhil-kharij register is to be treated 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 person in the absence of the material on which the age was recorded. (See: Birad Mal Singhvi v. Anand Purohit (1997) 4 SCC 24).” 10. The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:- 7 “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.” 11. 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 8 who gave the date of birth is examined.” 12. 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. 13. Based on the above cited judgments, it is clear from the evidence presented in this case that neither the victim nor her father were able to tell her date of birth. However, in his cross-examination, father of the victim (PW-1) stated that her daughter/victim’s age is approximately 20-21 years. He further stated that on the police's insistence, he told his daughter's age as 14 years. He also admitted that he hadn't even taken her to school for admission. Furthermore, there's no evidence or birth date record produced to substantiate the victim's age as recorded in the dakhil-kharij register. It is not clear that which document was the primary basis for recording that date. Smt. Suman Sai (PW-7) also stated that 9 she was not in school at the time of admission of the victim. Thus, on the basis of the above judgments, the prosecution has failed to prove that the date of birth of the victim is 15/07/1998 and she was a minor being below 18 years of age on the date of incident. Consenting Party 14. Father of the victim (PW-1) admitted in his cross- examination that he don't want victim to marry a man from a different caste. He also admitted that he don't want victim to become the accused's second wife. He filed the report because he felt that victim and the accused couldn't live together as husband and wife. 15. The victim (PW-3) stated in her examination-in-chief that in October, 2015, the accused had taken her from Gurghela drain to Surajpur where he kept her in a rented room and committed sexual intercourse with her. The accused kept her about 10 months with him. She also became pregnant with the accused and had an abortion after taking a pill. This witness admitted in cross-examination that, she had a love affair with the accused/appellant. Her elder sister had married the accused's brother, so her parents told her that they cannot give two daughters in the same house. She further stated that her landlord also lived with his family in 10 the room where she lived with the accused. When the accused went to work in the morning, she would stay in the room and cook. After cooking, she would sit with the neighbors in the accused's absence. While living with the accused, she would accompany him to the market. The room they lived in was very densely populated. She further stated that she told the landlord and others that she was the accused's wife. She and the accused lived as husband and wife. She further stated that while she lived with the accused, she would talk to her sisters on the mobile phone and inquire about each other's well-being. She was with the accused for approximately 10 months, and her parents and siblings were aware of this. She further stated that she was living happily with the accused in Surajpur. She further stated that the accused was her husband and she was his wife. She further stated that she voluntarily took abortion pills to avoid social stigma. Thus, it is clear from the entire statement of the victim herself that she was a consenting party. Conclusion 16. Thus, the prosecution has failed to prove that the victim was a minor under the age of 18 at the time of the alleged incident. The victim has also been found to be a consenting 11 party. In such circumstances, the conviction and sentence in question cannot be sustained as no offence under Sections 363, 366, 506 & 376(2)(i)(j) of the IPC as also U/s. 5-(i)/6 of the POCSO Act, 2012 can be proved against the Appellant and when the aforesaid Sections cannot be proved against the Appellant, no offence under Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act, 1989 can be made out against him. 17. In view of the aforesaid discussion and in light of the above referred judgments, the appeal is allowed and the impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted. 18. The Appellant is on bail. He need not to surrender in this case. However, his 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. 19. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham