1 2026:CGHC:8984 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 152 of 2022 1 - Golu @ Raj Marawi @ Rajkumar Marawi S/o Vijay Kumar Marawi Aged About 20 Years R/o Bhudwari Moholla, Ratanpur, Police Sation Ratanpur, District Bilaspur Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through Police Chowki C.S.E.B. Police Station Kotwali, District Korba Chhattisgarh. ... Respondent(s) For Appellant : Shri Pranjal Agrawal, Advocate. For State : Shri Ashutosh Trivedi, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 19.02.2026 1 The present appeal has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 06.01.2022 passed by the Additional Sessions Judge (FTC)/Special Court (POCSO) Korba in Special Criminal Case (POCSO) No.30/2018 whereby the appellant has been convicted and sentenced as under : Conviction Sentence 363 IPC RI for 07 years and fine of Rs.500/-, in default of payment of fine, additional RI for one month. 366-A IPC RI for 07 years and fine of Rs.500/-, in default of payment of fine, additional RI for one month. 4 of POCSO Act RI for 10 years and fine of Rs.1000/-, in default of payment of fine, additional RI for two months. INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.02.23 10:49:24 +0530 2 2 Brief facts of the case are that, on 10.10.2018 a missing report, Ex.P/4 was lodged at Police Outpost, CSEB, Korba by the father of victim that his minor daughter is missing since 07.10.2018 and her whereabouts could not be traced out. During inquiry of missing person, Korba Police received an information from Delhi Police that victim is recovered at Delhi and she is kept at Child Welfare Committee at Delhi. Korba Police went to Delhi and recovered the victim on 05.11.2018 and recovery Panchnama Ex.P/16 was prepared in presence of witnesses. The victim was medically examined by Doctor at Delhi and her MLC report is Ex.P/3. While medically examining the victim, the doctor has not noticed any external or internal injury on the body of victim. Note is made in the said MLC report that police obtained the victim from her sister’s house. Girl admits the consensual non forceful sexual contact with the boy. The victim was again medially examined at District Hospital, Korba by Dr. Vineeta Rawate, PW-5, who gave her report Ex.P/9. While medically examining the victim, the doctor has not noticed any external or internal injuries on her body. Two slides of vaginal slides were prepared, sealed and handed over to police for chemical examination. With respect to age and date of birth of victim, her Progress Report Card of Class-VIII was seized vide Ex.P/6. Spot map Ex.P/7 was prepared by the police. The police also seized school register Ex.P/13 vide seizure memo Ex.P/12 and after retaining its attested true copy, the original was returned back. An unnumbered Nalisi Ex.P/5 was recorded. The appellant was arrested on 18.11.2018 and he too was sent for his medical examination to District Hospital, Korba where he was examined by PW-13, Dr. Ravikant Singh Rathore, 3 who gave his report Ex.P/24 and found him capable to perform sexual intercourse. Vaginal slide of victim, Semen slide of appellant and his pubic heir was sent for chemical examination to regional FSL Bilaspur from where report Ex.P/26 was received. As per FSL report, in the semen slide of the appellant, sperms and semen were found, however no sperms and semen were found on the other articles. 3 The statement of witnesses under Section 161 CrPC have been recorded. Statement of victim under Section 164 CrPC were recorded. The trial court framed charge against the appellant for the offence under Sections 363, 366-A, 376(2)(n) IPC and Section5(l)/6 of POCSO Act. The appellant denied the charge and claimed trial. 4 In order to establish the charge against the appellant, the prosecution has examined as many as 14 witnesses. Statement under Section 313 CrPC of the appellant have also been recorded in which he denied the circumstances appears against him, pleaded innocence and have submitted that he has been falsely implicated in the offence. 5 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellant and sentenced him as mentioned in opening para of this judgment. Hence this appeal. 6 Learned counsel for respective appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the prosecution witnesses which cannot be made basis to convict him in the offence in question. The entire conduct of victim is suspicious throughout the proceeding. There is no cogent and admissible evidence with respect to age of victim that she was minor and less than 18 years of age on 4 the date of incident. School record has not been proved by the prosecution in accordance with law. In her medical examination, no injuries have been found on her body. The victim was having love affair with the appellant. She on her own will went to Delhi along with appellant and engaged in making consensual physical relation with him. She resided with appellant at Delhi without raising any objection or making complaint to anyone. Thus, in absence of any cogent and clinching evidence against the appellant, he cannot be convicted for the alleged offences. Therefore, the appeal may be allowed and the appellant be acquittal from all the charges. 7 On the other hand, learned counsel for the State opposes the submissions made by the appellant and would submit that prosecution has proved its case beyond doubt. But for minor omission or contradiction, there are sufficient and overwhelming evidence against the appellant to convict him in the offence in question. The victim was minor on the date of incident which is proved from her school record. The evidence of victim cannot be doubted as she duly supported her case in her evidence. The victim was recovered from the possession of appellant at Delhi. Even if no injuries were found on her body, that itself does not dilute the prosecution case. There are evidence that victim was kidnapped for the purpose of marriage and she was subjected to sexual intercourse by the appellant. Therefore, the judgment of conviction and sentence is absolutely justified and not required to be interfered with. 8 I have heard the counsel for the parties and perused the records of the trial court. 5 9 The first and foremost question would be the age of the victim as to whether she was minor and less than 18 years of age on the date of incident or not. 10 The prosecution has mainly relied upon school register Ex.P/13 which is sought to be proved by PW-7, the in charge Headmaster of the school. He stated in his evidence that the police seized school register with respect to date of birth the victim. After retaining its attested true copy Ex.P/13-C, the police has returned back the original register. As per school register, the date of birth of victim is 10.01.2005 The victim was admitted in the school in Class-I on 25.06.2010. In cross examination, he admits that at the time of admission in the school, birth certificate of victim was obtained from her parents, but he has not brought the said birth certificate or Tatima form. He admits that entries made in the school register is not in his own handwriting, but has been entered by another Teacher of school. He further admits that at the time of admission of victim in the school, he was not Headmaster and therefore he could not tell as to on what basis her date of birth was recorded in the school register. Admittedly from the evidence of PW-7 it does not reflect that he was the author of school register and secondly the basis on which the date of birth of victim was recorded was not available in the school record. 11 In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011 (2) SCC 385, which is in respect of admissibility of school records of a person, 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 6 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 victim 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. 12 In paragraphs 40,42,43,44 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. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 7 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 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:- "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." 13 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: "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 XXXX 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 8 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 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. 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." 9 14 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. 15. In a recent decision, in Rishipal Singh Solanki vs. State of 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 10 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 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." 15 Reverting to the facts of present case, the victim PW-1 have not stated any date of her birth in her examination in chief. She stated that her Progress Report Card Article A-1 has been seized by the Police. PW-2, the father of victim have stated in his evidence that victim is aged about 14 years, but he has not disclosed any date of birth. The police has seized her mark sheet and photograph of victim. In cross examination, he states that the victim is 4th number child. The oldest daughter was born in the year 1996 and remaining with a gap of 1 ½-2 years. PW-3 is the brother of victim. He too have not stated any date of birth of victim. PW-4 is the mother of victim. She too have stated that victim is her youngest daughter who is 14 years of age. She also have not disclosed any date of her birth. 16 Except these witnesses, there is no other evidence available on record to prove the date of birth or age of the victim. Even there is no birth certificate, Kotwari register of ossification test report of the victim to determine her age that she was minor and less than 18 years of age 11 on the date of incident, yet the trial court has held her minor, which appears to be the perverse finding. 17 So far as the offence of kidnapping and rape is concerned, this court again examine the evidence led by the prosecution. 18 PW-1, the victim have stated in her evidence that in the month of October she had quarrel with her brother and then she told her boyfriend (the appellant) that she is not willing to reside with her family. Her boyfriend tried to convince her, but on her instance, he took her with him. She went to Ambikapur along with appellant and stayed at his maternal uncle’s house. His maternal uncle also tried to convince her to return back her house, but she refused and thereafter she went to Delhi along with another maternal uncle of appellant. They stayed at Delhi in a house of a person who was well aquatinted with the maternal uncle of appellant. As they were in need of money, she started working and engaged in domestic work in the house where they were residing. When she could not perform the work properly and house owner was not satisfied with her work, she did domestic work in another 3-4 houses, however they were also not satisfied with her work. On this issue, some hot talk occurred with the appellant and then the persons of vicinity asked the reason, oo which she informed that she is missing and wanted to go back her parents house. Thereafter, the persons of vicinity took her to police station from where she was shifted to child welfare home at Delhi. 19 She further states that appellant was residing with her at Delhi but he did not do any wrong with her. When leading question was asked from her by the prosecution, she admits that on 07.10.2018 she went to her 12 friends house. She admits that there was love affair between her and appellant. When they went to Delhi, she stayed in separate room and appellant stayed in another room. The appellant regularly tried to convince her that whenever they earn money, they will took the room on rent. In her cross examination, nothing could be extracted that appellant has made forceful physical relation or he kidnapped her. Rather, it clearly transpires that she on her on will went along with appellant without raising any objection or protest. Initially they went to Ambikapur and stayed at the house of maternal uncle of appellant and thereafter went to Delhi. 20 From the admission made by the victim in her evidence it is established that appellant and his relatives tried to convince her to go back to her parents house, but she insisted to go with appellant and ultimately went to Delhi. When the victim is found to be major and as per her own evidence she was indulged in making physical relation without any objection, she is considered to be a consenting party and it cannot be said that appellant committed rape upon her against her will or consent. Had she not been a consenting party, she would not have visited to the house of appellant’s uncle and thereafter Delhi. The entire conduct of the victim clearly demonstrate that she was a consenting party in making physical relation which does not come under the definition of rape particularly when her age could not be proved to be minor on the date of incident. 21 When there is no evidence on record that victim protested at any point of time right from going to the house of uncle of appellant and thereafter Delhi, and there is no sign of any protest or struggle, it 13 cannot be said that prosecution has proved the allegation of kidnap and rape against the appellant that he kidnapped and thereafter committed rape upon the victim. 22 The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim’s evidence, then it will not be safe to reply on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 23 No injury was found over the body of victim while she was medically examined by the doctor either at Delhi or at Korba. There was no sign of any struggle on her body and it is also not the case of victim that she tried to save herself by giving nail scratch mark or teeth bite on the body of the appellant. Doctor Vineeta Rawte, PW-5, who medically examined the victim does not find any injury on her body and her MLC report is Ex.P/9. Further, in the FSL report Ex.P/26, no sperms and semen were found on the vaginal swab of the victim and there is no connecting evidence against the appellant with the offence in question. 14 24 PW-2, father of victim, PW-3, brother of victim and PW-4, mother of victim are the witnesses of fact whatever disclosed by the victim to them. When the victim herself is found to be a consenting party, the evidence of parents of victim does not have any significance in determining the offence of kidnapping and rape. 25 From all the aforesaid evidences, the prosecution could not establish the offence against the appellant that on the date of incident he kidnapped the victim, took her to Delhi and committed rape upon her. Thus, having gone through the entire evidence, I am of the considered opinion that prosecution has failed to prove its case against the appellant. 26 As a fallout of aforesaid consideration, the appeal is allowed and the impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from all the charges. The appellant is reported to be on bail. His bail bond shall continue for a further period of six months as provided under Section 481 of BNSS, 2023. 27 The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge inder