1 2025:CGHC:59009 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 498 of 2022 Pintu Yadav S/o Manoj Yadav Aged About 24 Years R/o Behind Ali Garadge Thagda Naher Padmanabhpur, District Durg Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Station House Officer, City Kotwali Durg, Police Station, District Durg Chhattisgarh. ... Respondent {Cause title, as taken from Cause Information System} For Appellant : Mr. Anurag Jha, Advocate For Respondent/State : Ms. Anuradha Jain, Panel Lawyer (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) JUDGMENT ON BOARD 20.11.2025 1. This criminal appeal has been preferred by the appellant / accused under Section 374 (2) of Code of Criminal Procedure, 1973 (henceforth, Cr.P.C.) challenging judgment of conviction and order of sentence dated 22.02.2022 passed by Upper Sessions Judge, Third Fast Track Special Court (POCSO Act), Durg, District Durg (henceforth, 'Special Judge') in Special Sessions Case (POCSO Act) No. 103/2018 , whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- 2 Sr. Conviction sentence Default stipulation 1. As per provision of Section 42 of the POCSO Act, appellant is sentenced under Section 5(ठ)/6 of the POCSO Act, as sentence u/S 5(ठ)/6 of POCSO Act is greater than the offence u/S. 376 of IPC 10 years RI with fine of Rs. 500/- RI for one month 2. Case of the prosecution, in brief, is that, appellant sexually exploited the minor victim (PW-1) on the pretext of marriage, hence she conceived. Looking to her deterioration in health when her father took to Hospital, then it was revealed that she is carrying pregnancy of 3-4 months. On being asked, victim (PW-1) told her parents that appellant sexually exploited her on the pretext of marriage. Thereafter, father of victim (PW-2) made written complaint (Ex.P-6) at Police Chowki – Padmanabhpur, Thana Durg, District Durg on 23.09.2018. Based on which, FIR (Ex.P-7) was registered against appellant and numbari FIR was registered at Police Station Durg Kotwali for the offence under Sections 376 & 506 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (henceforth, “POCSO Act”). Medical examination of victim was conducted by Dr. Vineeta Dhurve (PW-12), in which vide MLC report (Ex.P-35), she opined that victim is carrying pregnancy of 2 ½ – 3 months and no external or internal injuries were found on her person. Birth certificate of victim (Ex.P-9c) was seized from her father Kishan Anchal (PW-2). Dakhil Kharij register (Ex.P-14c) pertaining to the victim was seized vide seizure memo (Ex.P-15). After abortion of victim, her fetus was seized vide seizure memo (Ex.P-20). 3 Statement of witnesses were recorded. After usual investigation, charge- sheet under Sections 376 & 506 IPC and Section 6 of the POCSO Act was filed against appellant before Special Court. 3. Learned Special Court framed charges under Sections 376, 506 part II IPC and Section 5(B)/6 of POCSO Act, which were read over and explained to the appellant, who abjured the guilt and claimed trial. 4. So as to hold appellant/accused guilty, the prosecution examined as many as 12 witnesses and exhibited 35 documents. Statement of the appellant/accused was recorded under Section 313 of Cr.P.C. in which he denied all the incriminating circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. No defence witness has been examined by the appellant in his defence. 5. The Special Court, after appreciating oral and documentary evidence available on record, vide its impugned judgment dated 22.02.2022, convicted appellant under Section 376 IPC and Section 5(B)/6 of POCSO Act, but sentence him, as has been mentioned in opening paragraph of this judgment. 6. Being aggrieved and dissatisfied with the same, instant criminal appeal has been preferred by the appellant questioning the same. 7. Learned counsel for the appellant would argue that vide impugned judgment, learned Special Court has held victim minor merely on the basis of Birth Certificate (Ex.P-9c) obtained from Choice Centre, but the same has not been proved by calling original record from the office of Health Officer, Municipal Corporation, Durg, who is said to be issuing authority. Dakhil kharij register (Ex.P-14c) of Govt. New Primary School, Padmanabhpur, District Durg pertaining to the victim has also been seized vide seizure memo 4 (Ex.P-15), which has been proved by PW-7 Vijay Laxmi Mahant, Principal of that school, but she has admitted in paragraph 8 of her cross-examination that it has not been mentioned in Dakhil Kharij register that on the basis of which document, said date of birth i.e. 13.02.2003 was recorded. It is further contended that as per said birth certificate (Ex.P-9c) and Dakhil kharij register (Ex.P-14c), date of birth of victim is said to be 13.02.2003 whereas victim (PW-1) herself has stated in her deposition that her date of birth is 13.09.2003. Subsequently, in her deposition, she herself has stated that on the date of incident, she was major girl. Thus, learned counsel for the appellant submits that finding recorded by learned Special Court that victim was minor on the date of incident is perverse and contrary to the evidence available on record. He further submits that victim (PW-1) herself has admitted in her cross-examination that she was adult on the date of incident and she, on her own will, had accompanied with appellant, she has also admitted that appellant has not sexually exploited her, thus, she has contradicted her deposition of examination-in-chief in her cross-examination. It is further contented that it is a case of love affair, but only on the grudge, father of victim lodged FIR whereas victim has performed marriage with the appellant and now the victim has also delivered a male child of appellant and they are living as husband & wife peacefully. Hence, he prayed that appeal may be allowed and the appellant may be acquitted of the alleged charge by setting aside the impugned judgment passed by the Special Court. 8. On the other hand, learned counsel for the State/respondent would support the impugned judgment. 5 9. 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. 10. As per case of the prosecution, victim was minor on the date of incident. Her birth certificate (Ex.P-9c) generated from Choice Centre was seized from father of victim (PW-2), vide seizure memo (Ex.P-8), in which, date of birth of victim is mentioned as 13.02.2003. This date of birth i.e. 13.02.2003 is also mentioned in her Dakhil Kharij Register (Ex.P-14c), which has been exhibited by Principal Vijal Laxmi Mahant (PW-7), simillar date of birth has also been deposed by father of victim (PW-2), but victim (PW-1) herself has stated her date of birth to be 13.09.2003. In subsequent statement, recorded on 5.1.2022, victim herself has stated that she was adult on the date of incident whereas in examination-in-chief, she has stated that her age was 16 years. Thus, there is highly contradictory evidence with regard to date of birth / age of victim. 11. Birth certificate (Ex.P-9c) has been generated from Choice Centre, but the same has not been proved by calling original record from the office of Health Officer, Municipal Corporation, Durg. As per birth certificate (Ex.P-9c), date of birth of victim (PW-1) is 13.2.2003 and it was got registered on 28.7.2018 and same day, it was generated by Choice Centre, meaning thereby, it was registered by Health Officer, Municipal Corporation, Durg after 15 years, therefore, it ought to have been proved by the prosecution that it was got registered in accordance with The Registration of Births and Deaths Act, 1969, particularly, when victim herself is saying different version about her date of birth. 6 12. 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 another1 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 Vs. Anand Purohit2)”. 13. Similar view has further been reiterated by the Supreme Court in the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh and others3, which reads as under :- 1 (2008) 13 SCC 133 2 (1997) 4 SCC 241 3 (2022) 8 SCC 602 7 “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 Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.” 14. Since, it has not been proved that who got recorded date of birth of victim in School and on the basis of which document, said date of birth i.e. 13.02.2003 was recorded, has also not been proved. Therefore, on the basis of Dakhil Kharij register (Ex.P-14c), it cannot be held that 13.2.2003 is actual date of birth of victim. 15. In view of the foregoing discussion, evidence available on record is not found to be valid to hold victim minor on the date of incident, hence, the finding recorded on this count by learned Special Court is set aside. 16. So far as conviction of the appellant under Section 376 IPC and Section 5(ठ)/6 of the POCSO Act is concerned, though earlier, victim had stated in her deposition that appellant had sexually exploited her, therefore, she became pregnant, which has also been supported by her father (PW-2) and her mother (PW-3) to whom victim told about aforesaid facts. Though victim has deposed that appellant repeatedly sexually exploited her for more than three months under threat, but her statement does not inspire confidence of the Court, as appellant did not always stay with her, therefore, it is not reliable that said act was committed by the appellant under threat. Aforesaid fact also does not inspire confidence of the Court because victim herself has admitted in her cross-examination dated 05.01.2022 that appellant has not sexually exploited her, rather she has performed marriage with the appellant. This fact indicates that said relation was made between them on account of affair, as during pendency of instant appeal, victim has also filed her affidavit before the Court stating that she had performed marriage with 8 the appellant and has also given birth to a male child of the appellant ko 17. In view of the foregoing discussion, the prosecution has failed to prove that the victim was minor on the date of incident and sexual exploitation of victim by the appellant has also not been proved beyond reasonable doubt, as controverted by the victim (PW-1) herself. Further, victim and appellant has performed marriage and she has also delivered a male child of appellant. 18. Having considered aforesaid discussion, impugned judgment of conviction and order of sentence passed by Special Court is not found to be sustainable, hence the same is liable to be set aside. 19. Accordingly, this appeal is allowed. Impugned judgment of conviction of appellant under Section 376 of IPC and Section 5(ठ)/6 of the POCSO Act, as also his sentence under Section 5(ठ)/6 of the POCSO Act is set aside/quashed. Hence, he be set free forthwith, if not required in any other case. 20. The appellant is reported to be on bail, his bail bonds shall remain in force for a further period of six months in view of the provisions contained in Section 481 of the BNSS, 2023 21 Let copy of this judgment along with record of the court below be sent back forthwith for compliance and needful, if any. Sd/- (Naresh Kumar Chandravanshi) Judge amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.12.08 11:30:26 +0530