1 2025:CGHC:55207 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1812 of 2025  Omprakash Rajput @ Chhotu S/o Raj Singh Rajput Aged About 20 Years R/o Jhulan (Pakariya), Police Station Pamgarh, District Janjgir-Champa, At Present Nursarypara, Kohadiya, Out Post C.S.E.B., District Korba Chhattisgarh. ... Appellant. versus  State Of Chhattisgarh Through Station House Officer, Police Of Out Post C.S.E.B., Police Station Civil Line, Rampur, Korba, District Korba Chhattisgarh. ---- Respondent -------------------------------------------------------------------------------- For Appellant : Mr. Anil Gulati, Advocate For Respondent-State : Mr. Laxmeen Kashyap, PL. -------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 12.11.2025 2 1. This criminal appeal has been preferred by appellant against the judgment of conviction and order of sentence dated 01.08.2025 (Annexure A-1), passed by learned Additional Sessions Judge, Korba, (CG) in Special Case (POCSO) No.43/2024, whereby appellant stands convicted as under: Conviction Sentence Under Section 376(1) of the IPC. Sentenced as per Section 42 of POCSO Act for the greater punishment. Under Section 04 of the POCSO Act. Rigorous imprisonment for 10 years & fine of Rs.10,000/-, in default of payment of fine, 03 months additional RI. 2. The prosecution case, in brief, is this on the basis of written report made by mother of victim to the Out Post -C.S.E.B., Police Station -Civil Line, Rampur, Korba, District Korba (C.G.), in which, it was alleged that she used to reside along with her minor daughter and on being asked by her, the victim informed that the appellant prepared the normal photo and video, which was kept by the appellant in his mobile. On 26-05-2024, when the victim was alone in her house, at that time the appellant came there and committed forceful sexual intercourse with her. Based upon report, FIR was registered 3 and appellant has been arrested in the aforementioned crime/offence. 3. On completion of investigation, challan/charge sheet was filed against the appellant and based upon which trial Court framed the charges against him. 4. Prosecution in order to prove its case examined total 12 witnesses. Statement of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence. 5. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal. 6. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record. There are major contradiction and omission in the statement of prosecution witnesses, which was not considered properly by the trial Court. The victim was examined before the trial Court as PW-2 and in her evidence she categorically deposed that she was 4 pressurized by her mother to lodge the report against the appellant. The entire deposition of the victim clearly reveals that she was consenting party and there was affair between the appellant and victim and the relationship which was established between them are consensual relationship. Learned Counsel further contended that as per case of prosecution, victim was minor at the time of alleged incident, but no authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. Prosecution failed to produce the birth certificate or any other relevant document to prove the DOB of the victim. As such, the impugned judgment of conviction recorded and sentence awarded deserves to be set-aside. 7. On the other hand, learned counsel for the State supporting the impugned judgment and submits that the prosecutrix was a minor girl on the date of incident and this fact has been duly proved by the prosecution by adducing oral and documentary evidence, therefore, her consent, if any, is irrelevant. Prosecutrix was subjected to forcible sexual intercourse by appellant. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed. 8. Heard learned counsel for the respective parties and 5 perused the recorded placed on record. 9. Now this Court has to see whether the prosecution has been able to prove that on the date of incident prosecutrix was minor. Prosecutrix and her mother have been examined before the trial Court as PW-2 & PW-1. Prosecutrix in her evidence has stated that her DOB is 17.09.2007. Mother of victim in her evidence that she has not produced the birth certificate of her daughter (PW-2) to the Police Official during investigation. She also stated that she verbally informed the DOB of victim when victim was admitted in the School and she did not submit any document regarding DOB of victim in the School. Prosecution also failed to produce the relevant certificate/document on record regarding DOB of prosecutrix. 10. PW-8/Pras Ram Dewangan (Headmaster of Higher Secondary School, Pragatinagar, NTPC, Korba) in his evidence has stated that as per Dakhil-Kharij panji (Ex-P/19) DOB of prosecutrix is 19.07.2007, however, he admitted in his cross-examination that he is not the author of the said entry of DOB of prosecutrix in Dakhil-Kharij panji. He also admitted that at the time of admission of victim in the School, parents of victim has not submitted the birth certificate of victim in the School. Prosecution has failed to 6 produce the relevant document/certificate regarding DOB of prosecutrix. 11. The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment as under: “40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- 7 "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 12. In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court 8 claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3) (a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court observed in para 33 as under:sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub- section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of 9 evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court observed in para 33 as under:the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other 10 provisions. 33.11 Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 13. The Supreme Court in the matter of Manak Chand alias Mani vs. 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 11 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.” 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.” 14. In the case of P. Yuvaprakash versus State Rep. By Inspector of Police, AIR 2023 SC 3525, the Hon'ble Supreme Court observed in para 13 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of 12 which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 15. In light of aforesaid decisions of the Hon'ble Supreme Court, this Court is of the view that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, this Court set aside the finding so recorded by the learned trial Court and hold that the prosecution has not been able to prove successfully that on the date of incident she was minor. 13 16. Now coming to the point whether the appellant has committed rape with the prosecutrix ? 17. Prosecutrix in her Court evidence has categorically deposed that she is having relationship with the appellant and they used to talk each other since the year 2023. She further stated that when their photos and videos uploaded in the website (Instagram) seen by her mother, thereafter, she came to know about their relationship and she was annoyed to the appellant. She also stated that she was pressurized by her mother to lodge the report against the appellant and when she denied, she was assaulted by her mother and brother. She further stated that she has given the statement against the appellant before the police station as also before the Court under the pressure of her mother and brother, she admitted that she gave the statement as her mother told her to say. She also denied the allegation of forceful sexual intercourse made by the appellant on 26.05.2024. 18. Further, PW-4/Dr. KB Sonkar, (medical officer) in her deposition has stated that no internal or external injury has been found on the body of prosecutrix during examination. 19. Looking to the contradiction and exaggeration in the evidence of the prosecutrix, her conduct during the alleged incident and subsequent thereto coupled with the medical evidence which also lends no support to the prosecution 14 case, it is clear that the prosecutrix was a consenting party in this case to the act of the accused person. 20. Since this Court has already observed that the prosecution has failed to prove that on the date of incident she was minor, in the given set of facts and circumstances of the case, no offence of rape is made out against the appellant. 21. In the result, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 01.08.2025 (Annexure A-1) is hereby set aside. The appellant is acquitted from the aforementioned charges/offences. He is reported to be in jail since and, therefore, he be set free forthwith if not required in any other case. 22. Keeping in view the provisions of Section 437-A of CrPC, the appellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 15 23. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) JUDGE J/-