1 2026:CGHC:1728 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 227 of 2023 1 - Bajman @ Rohan Netam S/o Saradu Netam, Aged About 42 Years R/o Village Bavdi, P.S. Kondagaon, District Kondagaon Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through The Station House Officer (Sho), P.S. Benoor, District Narayanpur Chhattisgarh. ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Mohit Kumar, Advocate For State/Respondent : Mr. Pratik Tiwari, Panel Lawyer. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) Judgment on Board 12/01/2026 1. This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 16.12.2022 passed by the learned Upper Sessions Judge, FTSC (POCSO), Kondagaon, District Kondagaon, Chhattisgarh (henceforth referred to as ‘Special Court) in POCSO Case No.34/2019, whereby RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2026.01.16 15:48:17 +0530 2 the appellant has been convicted for the offence under Section 376 of the Indian Penal Code (for short ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (henceforth referred to as ‘POCSO Act’), but in view of the provision of Section 42 of the POCSO Act, he has been sentenced only for the offence under Section 6 of the POCSO Act to undergo R.I. for 10 years and also imposed fine of Rs.1000/-, and in default of payment of fine, to further undergo R.I. for 03 months. 2. Facts of the case, in brief, are that, father of a minor victim (P.W. 3) made a written complaint (Ex. P-10) stating inter alia that his minor daughter (victim- P.W. 1), aged about 16-17 years, had gone to village Kulanar to stay at the house of her maternal uncle (मामा), where the appellant met her and, on the pretext of marriage, sexually exploited her. On 08.08.2019, when P.W. 3 along with his wife went to Village Kulanar to meet victim, then they found that her abdomen was swollen. On being asked, the victim told them that the appellant had repeatedly sexually exploited her on pretext of marriage, as a result of which she had conceived and was for about 4-5 months’ pregnant . Despite being informed of this fact, the appellant did not come to meet the victim. On the basis of written complaint, an FIR (Ex.P-11) was registered at Police Station Benur, District Narayanpur (CG) against the appellant for offences punishable under Section 376 of the IPC and Section 6 of the POCSO Act. The victim was medically examined by Dr. Khyati Shakshi (P.W. 7), who, vide MLC report (Ex. P-7), opined that the victim was carrying pregnancy of about 20 weeks. During course of investigation, statements of witnesses were recorded. Spot maps were prepared by police and patwari vide Ex. P-2 and Ex.P-3, respectively. Dakhil Kharij 3 register pertaining to the victim was seized from Ram Ratan Thakur (P.W. 9), In-Charge Headmaster of Primary School, Pawda, District Kondagaon vide seizure memo (Ex.P-8). The appellant/accused was also medically examined by Dr. Pravirchand Bhandari (P.W. 10), who, vide MLC report (Ex. P-9), opined that the appellant’s report was positive. The victim’s child underwent a DNA test, which matched from blood sample of appellant and vide DNA test report (Ex.P-27), it was reported that the appellant is biological father of child conceived by victim. After completion of investigation, a charge-sheet for the offences under Section 376 of the IPC and Sections 4, 6 of the POCSO Act was filed against the appellant before the Special Court. 3. Learned Special Judge framed Charges under Section 376 of the IPC and Section 6 of the POCSO Act against the appellant/accused, who abjured the guilt and entered into trial. 4. So as to bring home the charges, the prosecution examined as many as 14 witnesses and exhibited 28 documents. Statement of the accused under Section 313 of the Cr.P.C. was recorded, in which, he denied all the incriminating circumstances appearing against him in the evidence of prosecution claiming himself to be innocent and falsely implicated, but he has not examined any witness in his defence. 5. Learned Special Court after appreciating the evidence adduced by the prosecution, convicted and sentenced the appellant/accused, as has been mentioned in opening paragraph of this judgment, which has been assailed by him by filing instant appeal. 6. Learned counsel appearing for the appellant would submit that age of victim has been determined by learned Special Court as that of a minor solely on the basis of Dakhil Kharij Register (Ex.P-7 ‘C’) of the victim, 4 in which her date of birth has been mentioned as 06.03.2002. The said register was proved by Ram Ratan Thakur (P.W. 9), In-Charge, Headmaster of the Primary School, Pawda, PS Badedongar. As per Dakhil Kharij Register, date of birth of the victim was recorded as 06.03.2002; however, Tikam Singh Ravte (P.W. 5), a teacher of aforesaid school, has categorically stated that the said date of birth was entered in the school records merely on the basis of assumption. Learned counsel further submitted that as per the said date of birth, the victim was on the verge of attaining majority and, therefore, the prosecution ought to have proved her date of birth by adducing valid evidence as provided in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth referred to as ‘JJ Act, 2015’) but the prosecution has failed to produce any valid evidence to prove date of birth of victim and, as such, the finding recorded by the learned Special Court that the victim was a minor on the date of incident, is not sustainable in law. He next submitted that the victim was involved in repeated physical relations with the appellant with her free will and consent; therefore, the appellant cannot be convicted for the offence of rape. Hence, he prays that the appeal may be allowed and the appellant may be acquitted of all the charges. 7. Per contra, learned counsel appearing for the State would submit that the prosecution has duly proved that the victim was a minor on the date of incident. Even otherwise, it is contended that the appellant, despite being a married person, sexually exploited the minor victim on the pretext of marriage by concealing his earlier marriage. Therefore, it cannot be held that the victim was involved in said physical relation with her free will; rather her consent was obtained by cheating and by 5 keeping her under a misconception of fact. Learned counsel thus submitted that the appellant has rightly been convicted and sentenced for the offence of rape of minor victim. He lastly submitted that the DNA test report (Ex.P-27) of the newborn child of victim is also against the appellant, as it has been reported in it that the appellant is biological father of child conceived by victim. Hence, the appeal is liable to be rejected. 8. I have heard learned counsel for the parties and perused the material available on record along with record of the Special Court. 9. As per the case of prosecution, the victim was a minor girl, aged about 16-17 years, at the time of alleged incident. However, neither victim (P.W. 1) nor her mother (P.W.2) or father (P.W. 3) has stated her date of birth. Rather, they are found to be illiterate persons. 10. Learned Special Court has held the victim to be a minor on the basis of her date of birth, i.e., 06.03.2002, as recorded in the Dakhil Kharij Register (Ex.P-7 ‘C’), which has been proved by Ram Ratan Thakur (P.W. 9), In-Charge Headmaster of Primary School, Pawda, PS Badedongar, District Kondagaon. However, he has admitted in his cross-examination that he had not admitted victim to the school and could not state that on the basis of which document, the said date of birth of victim was recorded in school records. Tikam Singh Ravte (P.W. 5), a teacher of the aforesaid school, stated in his deposition that under a Government drive of Sarva Shiksha Abhiyan - Rajiv Gandhi Mission, children aged of 8-14 years were admitted to the school. Under the said drive, the victim was admitted to the aforesaid school in the year 2012 at the age of 9 years, directly in Class -III. He has also admitted in his cross-examination that the said date of birth, i.e., 06.03.2002, 6 was not recorded in school records on the basis of any birth certificate, Aadhar card, Kotwar record or any other document, rather, it was recorded merely on the basis of assumption. On the basis of aforesaid date of birth, the victim was on the verge of attaining majority on the date of incident, therefore, the prosecution ought to have proved her date of birth by adducing cogent evidence, as has been provided under Section 94(2) of the JJ Act, 2015. 11. In the POCSO case, the age of the victim / prosecutrix is the most important aspect. The manner & procedure to determine the age of minor / juvenile has been contemplated in Section 94 (2) JJ Act, 2015, which reads thus :- “ 94. Presumption and determination of age - (1) xxx xxx xxx (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining — (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 : 7 Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. 12. The Hon'ble Supreme Court while emphasizing the aforesaid provision in the cases of Om Prakash Vs. Union of India (Criminal Appeal No. 4229 of 2024, decided on 08 th January, 2025 ) and Rajni Vs. State of Uttar Pradesh [2025 LiveLaw (SC) 602] has held that age of the minor should be determined according to Section 94 of the JJ Act, 2015, which is a reiteration of Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007, which mandates the explicit outline, a sequence for determining a person’s age i.e. date of birth certificate from a School, or matriculation / equivalent certificate from the concerned examination Board, if available; and in the absence thereof; a birth certificate given by a Corporation or Municipal Authority or a Panchayat. And only in the absence of above document, 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. 13. In the present case, as discussed in preceding paragraphs, the evidence available on record clearly shows that the date of birth of victim was recorded in the school records merely on the basis of assumption. No conclusive evidence has been adduced by the prosecution to establish her age, as such, considering the marginal age of majority of the victim and the vague evidence relied upon, it cannot be held proved beyond reasonable doubt that victim was a minor on the date of incident. Therefore, the finding recorded by the 8 learned Special Court in paragraph 18 of the impugned judgment, holding that the victim was below 18 years of age on the date of incident, is not sustainable. Consequently, the conviction of appellant for the offence under Section 6 of the POCSO Act is also not sustainable. 14. Though conviction of the appellant under Section 6 of the POCSO Act is not sustainable, the appellant has also been convicted by learned Special Court for the offence punishable under Section 376 of the IPC. In this regard, victim (P.W. 1) has stated in her deposition that, on the pretext of marriage, the appellant repeatedly sexually exploited her at Village Kulanar, as a result of which, she conceived. She has further stated that despite informing the appellant about her pregnancy, he only assured her that he would return but failed to do so. She also stated that on 09.12.2019, she delivered a child of the appellant. Her mother (P.W. 2) and father (P.W. 3) have also supported her statement, to whom she had told about the incident. 15. Dr. Khyati Shakshi (P.W. 7), who medically examined victim on 09.08.2019, opined in the MLC report (Ex.P-7) that the victim was carrying pregnancy of 20 weeks. Dr. Sakun Markam (P.W. 6) conducted an ultrasound of fetus of victim on 14.08.2019 and, vide her report (Ex.P-6), opined that the victim was carrying pregnancy of 19 weeks & 3 days. Thus, from aforesaid medical evidence, it is found proved that due to repeated physical relations with the appellant, the victim not only conceived but also delivered the child of the appellant. 16. Ex.P-27 is DNA test report of the child born to the victim, which she 9 had conceived. Inspector Naresh Deshmukh (P.W. 13) has proved that the appellant was sent to the District Hospital, Narayanpur, for collection of his blood sample for DNA test. As per DNA test report, the appellant was found to be the biological father of child delivered by victim. Nothing has been elicited in the cross-examination of concerned witnesses to discard aforesaid evidence, particularly the DNA test report. 17. The victim has stated in her deposition that the appellant repeatedly sexually exploited her on false pretext of marriage. The victim’s mother (P.W. 2) has stated in her deposition that the appellant was saying that he would marry the victim but they denied because the appellant was already a married person. It has not been even rebutted in cross- examination that the appellant was not married at the relevant time. Thus, from aforesaid evidence and deposition of victim, it is found proved that the appellant not only obtained consent and will of victim under misconception of fact, but also cheated her, as he concealed the fact that he was already married. Thus, the consent of the victim was obtained by deception and cheating. 18. In view of above discussion, it is found that learned Special Court has not committed any mistake in holding the appellant guilty for the offence under Section 376 of the IPC. Hence, the same is affirmed. 19. Accordingly, the appeal is allowed in part. Conviction of appellant under Section 6 of the POCSO Act is set aside, while his conviction under Section 376 of the IPC is upheld. 20. So far as the sentence part is concerned, for committing the rape of 10 victim, the appellant has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1000/- with default stipulation, which is minimum sentence prescribed for the said offence, therefore, it also does not require to be interfered, hence, the same is also affirmed. 21. Resultantly, the appeal is partly allowed to the extent indicated here- in-above. 22. The appellant is said to be in jail, therefore, it is directed that he shall serve the remaining jail sentences imposed upon him by the Special Court. 23. A copy of this judgment along with record of the Special Court be sent back forthwith for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge Rukhsar