1 2025:CGHC:58348-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1829 of 2019 Lokendra Das Mahant @ Loken, Son of Jeevan Das Mahant, aged about 18 years 6 month, Resident of Village Khutakunda, Tahsil and Police Station Kartala, District- Korba, Chhattisgarh ... Appellant versus State of Chhattisgarh, through Station House Officer, Police Station- Kartala, District- Korba, Chhattisgarh --- Respondent For Appellant : Mr. Vikash Pandey, Advocate For Respondent/State : Mr. Sharad Mishra, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (02.12.2025) Sanjay Kumar Jaiswal, J. 1. Invoking criminal appellate jurisdiction of this Court under SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.12.03 17:07:43 +0530 2 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 15.11.2019 passed by the learned Additional Sessions Judge (FTC)/Special Court – POCSO Act, 2012, District Korba (C.G.), in Special Case (POCSO) No.23/2018, by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 376 (2)(n) 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 (2)(n) of the IPC] Imprisonment for life and to pay fine of ₹1,000/-; in default of payment of fine, RI for 1 month 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 1 month U/s 366 - A of the IPC RI for 7 years and to pay fine of 500/-; in default of ₹ payment of fine, additional RI for 1 month The sentences were directed to run concurrently 2. The prosecution case in brief is that the victim (PW-2), a resident of village Beharchuan, Police Station Kartala, 3 District Korba, aged approximately 17 years, left her home without informing anyone between 12:00 and 4:00 a.m. on the night of 06/08/2018. Her father (PW-3) searched her in the neighborhood and among relatives, but could not find any information about the victim. The father (PW-3) discovered that the appellant, from village Khuntakunda, was also missing from home since that night. The father (PW-3) submitted written information (Exhibit P-8) to the Police Station Kartala, based on which a First Information Report No. 52/2018 (Exhibit P-9) was registered. On 26/08/2018, the victim (PW-2) was recovered from the appellant at Champa Railway Station thereafter recovery Panchnama was prepared vide Exhibit P-3. The victim underwent a medical examination. Her underwear was seized and sent for chemical analysis. A map of the scene was prepared. Witness statements were recorded. The victim's statement was also recorded under Section 164 of the Code of Criminal Procedure. After completing investigation, the charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 26 documents. Statement of the appellant was also recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in 4 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-2) 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, the said offence cannot said to be proved. 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 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. 5 Age Determination 8. The victim (PW-2) did not state her date of birth in her Court statement. Her father (PW-3) and mother (PW-4) were also unable to provide her date of birth in their Court statements. To prove that the victim was a minor at the time of the incident, the prosecution placed dakhil-kharij register of Government High School, Beharchuan, on the basis of which birth certificate (Exhibit P-2) of the victim was issued. To verify this certificate, Principal, Krishna Murari Yadav (PW-1), was examined. He stated that the victim's date of birth is 10/10/2001. He certified the document (Exhibit P-2), and on the basis of dakhil-kharij register send the information to Station House Officer, Kartala. The dakhil-kharij register or the birth certificate or mark-sheet issued by him, has not been exhibited and marked. Instead, the primary examination progress report has been exhibited as Article A-2, and the certificate-cum- mark-sheet issued by the Chhattisgarh Board of Secondary Education, Raipur has been exhibited as Article A-3, according to which the date of birth of the victim is recorded as 10/10/2001. 9. How, dakhil-kharij register is to be treated relevant came up for consideration before the Hon’ble Supreme Court in 6 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:- “26. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his 7 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 who gave the date of birth is examined.” 12. The Supreme Court in the matter of Manak Chand alias 8 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 judgments, it is clear from the evidence presented in this case that neither the victim nor her father nor her mother were able to provide her date of birth. The school documents on the basis of which Principal Krishna Murari Yadav (PW-1) stated the victim's date of birth as 10/10/2001 is the dakhil-kharij register maintained for admissions to Class 9. According to witness Krishna Murari Yadav, after passing the Class 8 exam, the victim was admitted to Class 9 in his school on the basis of a transfer certificate. Thus, based on the transfer certificate, the victim's date of birth was recorded in the dakhil-kharij register and the mark sheet. It is not clear that which document was the primary basis for recording that date. The 9 victim's parents themselves are unable to provide her date of birth. Thus, on the basis of the above judgments, the prosecution has failed to prove that the date of birth of the victim was 10/10/2001 and she was a minor being below 18 years of age on the date of incident i.e. 06/08/2018. Consenting Party 14. The victim (PW-2) stated in her examination-in-chief that on the night of 06/08/2018, at 12 a.m., without informing anyone at home, she left for Dehradun with the accused/appellant. The accused had proposed marriage to her. She travelled in motorcycle with the accused to Sakti railway station, then boarded a train to Bilaspur, then changed trains to Katni, then to Haridwar, and then from Haridwar to Dehradun. The appellant kept her at his friend Neelkanth's house for 15 days, and the accused had sexual relations with her. The accused had not married her. This witness admitted in cross-examination that, when giving her statement to the police, she had stated that she loved the accused and wanted to marry him, and that the accused had offered to marry her, on the basis of which she had physical relations with accused. She also admitted that she had been in constant contact with the accused by phone.She further stated that her family was also aware of 10 her liking for the accused. The accused had also given her a mobile phone. She also admitted that she had the mobile phone with her until she reached Bilaspur and did not inform her family through the phone. She also did not inform her family from Dehradun. She also encountered police officers at other stations, but did not report against the accused. She loved the accused and wanted to marry him. Thus, it is clear from the entire statement of the victim herself that she was a consenting party. Conclusion 15. 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 party. In such circumstances, the conviction and sentence in question cannot be sustained as the said offenses have not been proved against the appellant. 16. 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. 17. The Appellant is on bail. He need not to surrender in this case. However, his bail bonds shall remain in force for a 11 period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 18. 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