1 2026:CGHC:5412-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1929 of 2024 1 - Takeshwar @ Tageshwar Markam S/o Naagdev Markam Aged About 24 Years R/o Village Madiyakatta, P.S. Dondilohara, District - Balod Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh Through Station House Officer Police Station Dondilohara, District Balod Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Reena Singh, Advocate. For Respondent/State : Mr. Nitansh Kumar Jaiswal, Dy. Govt. Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice. 31/01/2026 1. Pursuant to the order dated 07.01.2025, the victim along with her mother appeared through virtual mode from DLSA Balod and ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.02.03 10:59:09 +0530 2 submitted that they have no objection in granting bail to the appellant and to allow the appeal, their submission is taken on record. 2. Challenge in this appeal is the judgment of conviction and sentence dated 09.08.2024 passed by the learned Special Judge, (Protection of Children from Sexual Offences Act, 2012) Balod, in Special Sessions Case No. 58/2022, whereby the appellant has been convicted and sentenced as below:- Conviction Sentence Under Section 313 of IPC RI for 10 years and fine of Rs. 2000/- (two thousand rupees), in default of payment of fine amount additional RI for 01 year. Under Section 6 of Protection of Children from Sexual Offence Act. RI for 20 years and fine of Rs. 3000/- (three thousand rupees), in default of payment of fine amount additional RI for 01 year. All sentences shall run concurrently. 3. Brief facts of the case are that the victim PW-1 lodged a report to the Police at Police Station Dondilohara and Dehati Nalishi Ex.P/1 was recorded in which she alleged that on 09.05.2020, at about 01:00 pm, when she had gone to the village nursery, the accused came there and scolded her that she heavily using the mobile phone and he informed it to her mother. He proposed to her that he loves her and committed forceful sexual intercourse with her. Thereafter, he repeatedly made physical relation many times. When her periods were stopped in the month of April, 2022 and 3 she informed it to the accused, he gave her some herbal medicine, with which she was feeling pain on her abdomen but due to shy and fear she could not inform it to anyone. On 31.05.2020, when she had gone to Dondilohara to buy a cake, she failed giddiness and vomited there and then. The shop owner took her to the hospital for treatment, and she was referred to District Hospital, Balod. After her discharge from the hospital, she informed her maternal grandfather about the incident and then lodged a report. She was being sent for her medical examination to District Hospital Balod, where she was medically examined by Dr. Sonam Netam PW-4, who gave her report Ex.P/12. While medically examining the victim, no external injuries were found on her body and opined that sexual intercourse had taken place and no need for slide preparation because of UPT test is already positive and it may be a case of abortion. The victim was referred for further management to a higher centre. Spot map Ex.P/4 was prepared by the Police and Ex.P/5 was prepared by the Patwari. With respect to the date of birth and the age of the victim her middle marksheet of the school have been seized vide seizure memo Ex.P/8. From Government Primary School Madiyakatta, the school register Article-B (C) has been seized vide seizure memo Ex.P/10. FIR Ex.P/13 was registered against the appellant for ht eoffence under Section 376(2)(n), 376(3) and 316 of IPC and Section 4, 5 (l) and 6 of POCSO Act. The appellant was arrested on 01.06.2022 and he too was sent for his medical 4 examination to Community Health Centre, Dondilohara where he was medically examined by Dr. Vinod Kumar Chourka PW-3, who gave his report Ex.P/11. Statement of the witnesses under Section 161 of Cr.P.C. and statement under Section 164 of Cr.P.C. of the victim have been recorded and after completion of usual investigation charge-sheet was filed before the learned trial Court. 4. The learned trial court has framed charge under Sections 376 (2) (i)(n), 313 of IPC and Section 5(l)/6 of POCSO Act. The appellant abjured his guilt and claimed a trial. 5. In order to bring home the charge, the prosecution has examined as many as 09 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appears against him, pleaded innocence and submitted that he has been falsely implicated in the offence. 6. After appreciation of the oral as well as the documentary evidence available on record, the learned trial court has convicted the appellant under Section 376(2)(n) and 313 of IPC and Section 5(l)/6 of POCSO Act, and sentenced as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove their case beyond reasonable doubt. There is no cogent and legally admissible evidence available on the record to show that the victim was minor and less 5 than 18 years of age on the date of the incident. The school register produced by the prosecution has not been proved by the prosecution in accordance with law by examining its author. No other documents like the Kotwari register, birth certificate or the ossification test report have been filed by the prosecution to determine her age, and therefore the finding recorded by the trial court that on the date of the incident the victim was minor is erroneous. The basis on which her date of birth is recorded in the school admission and discharge register has not been proved by the prosecution. He would further argue that the victim was having the love affair with the appellant and consenting party and had not raised any alarm while making physical relation with the appellant. She has not protested at the time of alleged offence of making forceful sexual intercourse. No injuries have been found on the body of the victim. He would further argue that even if any act of sexual relation was being made by the appellant with the victim, the same was consensual, which does not come under the definition of rape. There is no evidence that the appellant caused miscarriage of her fetus against her will. Hence, the alleged offences of I.P.C. and POCSO Act are not made out against the appellant, and he is entitled for acquittal. 8. On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted that the victim was minor and below 18 years of age at the time of incident which is proved by the school admission and 6 discharge register Article B(c), which contains the date of birth of the victim as 31.05.2007. The school mark sheet of the victim which has been seized vide seizure memo Ex.P/8 supports the entries of the school register. The victim was minor on the date of the incident, and her consent is immaterial. The evidence of the victim need not be required for any corroboration and on the sole testimony of the victim, the conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The minor victim was subject to rape by the appellant and he caused miscarriage by administering herbal medicine. Therefore, the impugned judgment of conviction and sentence needs no interference. 9. We have heard the learned counsel for the parties and perused the record carefully. 10. With regard to the age of the victim, the prosecution has mainly relied upon the school admission and discharge register of the victim Article- B(C), which is seized by the police from the school and sought to be proved by PW-2, who is the Assistant teacher of the School. The PW- 2, has stated in her deposition that presently, she is working as incharge Headmistress in the school and has brought the original school register with her, and as per the school register, the date of birth of the victim is recorded as 31.05.2007 who has got admitted in Class -1 in the school. In cross- examination, she admitted that the date of birth of the victim is not recorded on her own handwriting in the school register. The basis 7 on which the entries have been made in the school register, is not there. She further admitted that who has got her admitted she did not know. 11. The victim, PW-1, stated in her deposition that her date of birth is 31.05.2007. She has given her 8th class mark sheet to the police with respect to her date of birth. In cross examination she admitted that her maternal grand-father has got admitted her in the school and he orally informed her date of birth. She further admitted that she disclosed her date of birth on the basis of the date of birth written in the mark sheet. She further admitted that she has not given her birth certificate to the police. 12. P.W. 8, mother of the victim, has stated in her evidence that the age of the victim is 16 years, however, she could not disclose her date of birth. In cross-examination she admitted that at the time when the victim was on her womb, her husband left her and went somewhere else. She admitted that her husband has left her since 19-20 years back. She denied that her maternal grand- father had gone to school for her admission. She voluntarily stated she herself had gone for the admission of the victim. She informed her date of birth in the school on assumption. Except these evidence no other evidence have been produced by the prosecution to prove the age of the victim. 13. The admissibility of evidentiary value of school records of the victim for determination of her age has been considered by Hon’ble Supreme Court in the matter of Alamelu and Another 8 Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 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 any material on the basis of which the age was recorded. The Hon'ble Supreme court held 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. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed 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. 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. 48. We may further notice that even with reference to 9 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. held as follows:- "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 (2006) 5 SCC 584 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." 14. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : 10 “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 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 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 11 declaration of the age of a person has to be made on the basis of 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 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 provisions. 12 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.” 15. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore,the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3,the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 13 15. In a recent decision, in Rishipal Singh Solanki vs. Stateof Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year. 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were 14 contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 16. In the instant case, although the date of birth of the victim is mentioned in school admission and discharge register, but the same has not been proved by its author or by producing the basis on which it has been recorded. The victim has stated that she was admitted in the school by her maternal grand-father and he orally informed her date of birth orally to the school , whereas her mother has stated that she was admitted her in the school and orally informed her date of birth on assumption. No any Kotwari Register, Birth Certificate or Ossification report of the victim have been produced to prove her age that on the date of the incident, she was minor and less than 18 years of age. 17. Therefore, the age of the victim cannot be determined, particularly in the absence of any other authentic records and, it would not be safe to hold that the victim was minor on the date of the incident. 15 18. So far as the allegation of rape is concerned, we again examine the evidence of the witnesses. P.W.-1 the victim, has stated in her evidence that on 09.05.2020 at about 01:00 when she had gone to the village nursery, the appellant came there, proposed her that he is loving her and made forceful physical relation with her. Thereafter, he repeatedly made physical relation with her on various occasions, by which she conceived pregnancy. When she informed about her pregnancy he gave her some pills and when she took the said pills her period again started. On 31.05.2022, when she had gone to buy a cake to Yadav Hotel, she felt giddiness and abdominal pain, and then the Hotel owner took her to Dondilohara Hospital. She was referred to Balod Hospital, and the next day she was discharged. At Balod Hospital, her pregnancy was found positive, and then she informed it to her mother and maternal grandfather. From Balod she was referred to Rajnandgaon Hospital, and after one day, she was discharged. In cross-examination, she admitted that the appellant was also a resident of the same village where she is residing. She further admitted that she used to go to her friend’s house at village Mundatola, where she was introduced with the appellant and often talk to him. She further admitted that whenever she had gone to the village of Mundatola, she used to talk with the appellant. She further admitted that the appellant was loving her. Whenever the appellant met her, he made physical relation with her but due to her threat, she could not inform the incident to 16 anyone. She also admitted that the appellant is loving some other girl for which there was a quarrel between her and the appellant. She also admitted that she told the appellant that she loves him but he is loving some other girl. From her evidence, it is quite vivid that since 09.05.2020 till the loading of the report, the victim has not made any complaint to anyone about forceful sexual intercourse by the appellant upon her. She made physical relation with him on various occasions and it is not her evidence that she raised an alarm or protested to try to give him a bite or a nail scratch mark on the body of the appellant at the time of alleged sexual intercourse. Continuously making physical relations for about 2 years goes to show that she was the consenting party in making physical relations with the appellant. Further, there is no evidence that the victim had caused miscarriage by the act of the appellant against her will or that the appellant was causing miscarriage without her consent. The victim has deposed that when she disclosed about her pregnancy to the appellant, he gave some pills which she consumed and then her periods again started. There is no evidence that the appellant forged her to consume pills or she was not consented for miscarriage. The evidence of the victim is not sufficient to hold the appellant guilty for causing the miscarriage of the victim against her consent. Further her evidence is also not sufficient to convict the appellant for the offence of rape in view of the long relation between them and there no objection or protest. 17 19. P.W. 9, mother of the victim have stated in her evidence that the victim has not disclosed about the incident to her. When she was feeling abdominal pain and admitted to Dondilohara Hospital and referred to Rajnandgaon Hospital, she came to know about her pregnancy. She subsequently came to know that her daughter is pregnant through the appellant. When the leading question was were asked from this witness, she admitted that the appellant proposed her that he is loving her and thereafter he had a physical relation with her daughter. She denied that her daughter informed her that her miscarriage was caused by administering herbal medicine by the appellant. In cross-examination, she further admitted that her daughter has never informed her that the appellant has made physical relation with her she also admitted that her daughter has never conceived any pregnancy. 20. The P.W. 4, Dr Sonam Netam, who medically examined the victim, has not found any injury on her body. Her UPT test was positive, and as per the statement of the victim, she consumed pills and thereby caused a miscarriage. In cross-examination, she admitted that, along with the MLC report of the victim Ex.P/12, her UPT test is not annexed. She further admitted that she conducted the UPT test of the victim which was found positive. She further admitted that what is the time gap between her miscarriage and medical examination she could not tell. Though this witness have stated that the victim was carrying pregnancy and her UPT test was found positive but there is no UPT test report or Sonography 18 test report annexed in the case to prove that she was actually conceived pregnancy or she was suffered a miscarriage. Her mother’s evidence is that her daughter has never conceived any pregnancy. 21. From the close scrutiny of the evidence, it emerges that she has not protested any act of the appellant and continued in making physical relation with him without making any objection or complaint to anybody, she has not raised any alarm when the appellant made physical relation with her. She has not disclosed the incident to her parents, which dragged us to draw the conclusion that the victim was the consenting party in making physical relation with the appellant and that was the reason she has not disclosed the incident to her parents or to any other person. There is no allegation that at the time of making forceful physical relation with her, she protested in any manner. 22. Considering the entire evidence available on record, the evidence with regard to the age and conduct of the victim, we are of the opinion that the prosecution has failed to prove that the victim was less than 18 years of age at the time of the incident. Further, she was a consenting party with the appellant in making physical relations with him and there is no sufficient and clinching evidence that the appellant caused miscarriage without the consent of the victim. Therefore, in the above facts and circumstances of the case, the offences under sections 376(2)(n) and 313 of I.P.C. and 19 section 5(l)/6 of the POCSO Act are not made out against the appellant. 23. For the foregoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 09.08.2024 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 09.08.2024. He be released forthwith if not required in any other case. 24. Keeping in view the provisions of section 481 of B.N.S.S. 2023, the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of the 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 along with 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 thereof shall appear before the Hon’ble Supreme Court. 25. The trial court records, along with a copy of this judgment be sent back to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok