1 2025:CGHC:56267-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1164 of 2018 Shakil Khan, S/o Tashwar Khan, aged about 25 years, R/o Mudegaon, P. S. Lailunga, District Raigarh Chhattisgarh ... Appellant versus State of Chhattisgarh, through Police Station AJAK, Raigarh District Raigarh Chhattisgarh --- Respondent For Appellant : Ms. Hamida Siddiqui, Advocate. For State/Respondent : Mr. Amit Buxy, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (19.11.2025) Sanjay Kumar Jaiswal, J. 1. (I) Invoking criminal appellate jurisdiction of this Court under Section 374(2) of Cr.P.C., the appellant herein has preferred this appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 10.07.2018 passed by the learned Special Judge(SC/ST) (Prevention of Atrocities Act), Raigarh (C.G.), in Special Case (Atrocities Act) No.45/2015, by which the SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.11.20 17:15:30 +0530 2 appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 376 of IPC RI for life and to pay fine of ₹1,000/-; in default of payment of fine, additional RI for 3 months U/s 4 of POCSO Act RI for 10 years and to pay fine of 1,000/-; in default ₹ of payment of fine, additional RI for 3 months Both the sentences were directed to run concurrently (II) The Trial Court has acquitted the appellant of offence punishable under Section 506 Part II of IPC, Section 3 (2)(v) and Section 3 (1)(xii) of SC/ST (Prevention of Atrocities) Act. 2. The prosecution case in brief is that the victim (PW-11) born on 03/05/1999 and belongs to Khadia caste which falls under the Scheduled Tribe category. She lived with her parents and siblings in village Mudegaon, Tehsil Lailunga, District Raigarh, Chhattisgarh. The appellant/accused, Shakeel Khan, a resident of the same village, raped her repeatedly and threatened to kill her as a result of which she became pregnant. The victim, who was approximately 7-8 months pregnant, informed her family members about the incident and with their assistance, she filed a written complaint (Exhibit P-11) at the Lailunga Police Station, based on which a First Information Report (Exhibit P-12) was registered on 27/08/2015. Thereafter, statements of 3 witnesses were recorded. The victim underwent a medical examination. Her Dakhil Kharij register and marksheet were seized from her school. The spot map was prepared and after completion of investigation, charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 20 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 which has been challenged in this appeal. 5. Learned counsel for the appellant submits that the victim (PW-11) was a consenting party with the accused/appellant who willingly have physical relations with the appellant. 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. The date of birth of the victim could not be proved. In such a situation, the said offence cannot be said to be proved. Hence, considering the above, it is prayed that the appeal may be allowed and the impugned judgment of conviction and order of sentence 4 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 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. 8. Doctor Usha Armo (PW-7), who conducted a medical examination of the victim on 27/08/2015 and submitted a report (Exhibit P-7), stated that the victim was approximately 28 weeks pregnant and that the fetus's heartbeat was audible. Despite medical advice and the preparation of a vaginal slide, no DNA test was conducted, and despite advice to determine the victim's age, no radiological examination was conducted. According to the prosecution case, the appellant had been having physical relations with the victim approximately one and a half to two years prior to the incident. In such a situation, it must be examined whether the victim was a minor, under the age of 18, at the time of the incident. 5 Age Determination 9. The victim (PW-11) stated her date of birth as 03/05/1999, based on the date of birth recorded at school. Her father (PW-12) and mother (PW-13) denied having any personal knowledge of the victim's date of birth. The mother (PW-13) stated that she did not know any of the children date of birth, while the father provided the full birth dates of two of the four children, and the birth date and month of another child, other than the victim, but failed to provide the year. During cross-examination, her father admitted that he had recorded the child's birth date in the Kotwari register. It is noteworthy that the Kotwari register was not seized instead, only the Dakhil Kharij register (Exhibit P-5) and the progress report (Exhibit P-6) based on Dakhil Kharij register, was produced, which stated the victim's date of birth as 03/05/1999. 10. 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 6 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).” 11. 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 7 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.” 12. 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.” 13. 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. 14. Mrs. Sanju Sahu (PW-5), the in-charge headmistress who issued the progress report (Exhibit P-6) based on the Dakhil Kharij register to verify the victim's (PW-11) date of birth, 8 stated in her Court testimony that the victim's date of birth was recorded as 03/05/1999 in the school based on the Dakhil Kharij register and progress report. Mrs. Sanju Sahu admitted in cross-examination that the entry made at the time of victim's admission was not in her handwriting but rather, she had made the entry when she provided the victim transfer certificate in 2009. She also did not provide any affidavit regarding the admission, so she cannot state the victim's actual date of birth. In cross-examination, she further admitted that the names of the victim's other siblings are also recorded on the basis of Dakhil Kharij register, with one sister's date of birth mentioned as 01/07/2000. Based on this, the victim's date of birth, which is recorded as 03/05/1999, and the other sister's date of birth, which is recorded as 01/07/2000, indicate a birth difference of only 14 months between the victim and her sister. Since, according to father of the victim (PW-12), the date of birth was recorded in the Kotwari register, that primary evidence has not been produced, and the source or basis for the date of birth of the victim recorded in the school is unclear, therefore, in light of the above cited judgments, this Court finds that the prosecution has failed to prove, through the evidence produced, that the victim (PW-11) was under 18 years of age at the time 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 15. According to the affidavit filed by the victim (PW-11) in connection with the accused's bail application accompanying with birth certificate of child, the victim gave 9 birth to the child on 13/09/2015, approximately 16/17 days after reporting the incident, dated 27/08/2015. Corroborating the prosecution's case, the victim also stated that the appellant had been having physical relations with her for one and a half years, and when she became eight months pregnant, the appellant refused to keep her with him. In cross-examination, she admitted that she had been in a love relationship with the appellant for approximately one and a half years. She also stated that a village meeting was held when she became pregnant. She also stated that she had physical relations with the appellant approximately one month before reporting the incident, and that their physical relationship was consensual. She also stated that she does not want any action against the appellant. Thus, despite having consensual physical relations for one and a half years, neither she informed her family members nor lodged the report against the appellant, and she did not want any action even though she claims to be pregnant by the appellant. In such a situation, the entire evidence indicates that the victim was a consenting party with the appellant/accused. 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 10 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 offenses under Section 376 of the IPC and Section 4 of the POCSO Act have not been proved against the appellant. 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. 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 trial Court forthwith, for information and necessary action, if any. D Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham