1 CGHC010056522023 2026:CGHC:27635-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 397 of 2023 1 - Mansingh Nishad S/o Baldau Nishad, Aged About 19 Years, R/o Village Padmi, Police Chouki Devarbeeja, Police Station and District Bemetara (C.G.) ...Appellant versus 1 - The State of Chhattisgarh Through The Station House Officer, Police Station Bemetara, District Bemetara (C.G.) ... Respondent (Cause-title taken from Case Information System) For Appellant : Ms. Madhunisha Singh, Advocate. For State : Mr. Ashish Shukla, Addl. Advocate General. For Objector : Mr. Dheerendra Pandey, Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 06-07-2026 1. The present criminal appeal has been filed under Section 374(2) of the Cr.P.C. against the the impugned judgment of conviction and order of sentence dated 28-01-2023 passed by learned Additional Sessions Judge, F.T.S.C. (POCSO Act) Bemetara, District Bemetara (C.G.), in Sessions Case No. 47/2022 whereby the appellant has been convicted and sentenced in the following manner with a direction to run all the jail sentences concurrently:- Digitally signed by MOHAMMED AADIL KHAN Date: 2026.07.14 18:59:27 +0530 2 Conviction Sentence U/s 341 of the IPC Fine of Rs.500/- in default of payment of fine amount S.I. for 1 month, U/s 323 of the IPC Fine of Rs.500/- in default of payment of fine amount S.I. for 1 month, U/s 506 Part II of the IPC R.I. for 2 years and fine of Rs.1,000/-, in default of payment of fine amount further R.I. for 2 months, U/s 6 of POCSO Act R.I. for 20 years and fine of Rs.2,000/-, in default of payment of fine amount further R.I. for 2 months, U/s 376(2)(j)(n) of the IPC No separate sentence has been awarded. U/s 376(3) of the IPC No separate sentence has been awarded. 2. The prosecution case, in brief is that, PW-1 father of the victim lodged a written report Ex.-P/1 to the Police Station Bemetara, Police Outpost, Devarbija, District Bemetara (C.G.) with the allegation that his minor daughter had gone to the school and at about 12:00 in the noon when she returned she disclosed that while going to school on the way the appellant stopped her and asked to go with him and when she refused, he abused and assaulted her. Two months back also the appellant kidnapped his minor daughter and when he came to know about his act, he scolded him and asked not to repeat the incident in future. His daughter has also informed that on 09.02.2022 the appellant committed rape upon her by giving allurement of marriage and since then he continued his physical relation with her. Based on the written complaint the FIR Ex.-P/2 was lodged and the police registered the offence against the appellant under Section 341, 294, 506, 323, 376, 3 376(2)(n) of the IPC and Section 4,5(l) and 6 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’). The victim was sent for her medical examination to District Hospital Bemetara where she was medically examined by PW-10 Doctor Sabida who gave her report Ex.-P/35. While medically examining the victim the doctor has noticed her hymen was ruptured, however, no external injury was found and no sigh of forceful intercourse was present. Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. Spot map Ex.-P/3 was prepared by police and Ex.-P/4 was prepared by Patwari. With respect to the age and date of birth of the victim, the police has seized the school register vide seizure memo Ex.-P/14 and after retaining attested true copy of the school register the original school register was returned back to the school and the attested true copy of the school register is Ex.-P/15(C). The police has also seized mark sheet of Class 5th of the victim in which her date of birth is recorded as 19-07-2008, which has been seized vide seizure memo Ex.-P/6. The appellant was arrested on 26-07-2022 and he too was sent for his medical examination to Primary Health Center Devarbija where he was medically examined by PW-7 Doctor Aditya Dipak who gave his report Ex.-P/19 While medically examining the appellant the doctor has found the the patient is eligible for sexual intercourse. The underwear of the appellant was also seized and it was sent for its query report to the doctor who gave his query report Ex.-P/20 and referred the same fo its chemical examination The underwear of the victim, her vaginal slides and underwear of the 4 appellant were sent for its chemical examination to State FSL Raipur from where report Ex.-P/32 was received in which no semen and sperms were found on the sent articles. 3. The statement of the witnesses under Section 164 of the Cr.P.C. has also been recorded and after completion of usual investigation charge sheet was filed against the appellant before the learned trial Court for the offence under Section 341, 294, 506, 323, 376, 376(2)(n), 354 and 354D of the IPC and Section 4, 5(l), 6 and 8 of POCSO Act. The learned trial Court has framed charge against the appellant for the for the offence under Section 341, 294, 323, 376(2)(j)(n), 376(3) and 506 Part II of the IPC and Section 5(l)/6 of POCSO Act. The appellant denied the charge and claimed trial. 4. To prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. The statement of appellant under Section 313 CrPC has also been recorded in which he denied the circumstances that appears against him, pleaded innocence and has submitted that he has been falsely implicated in the offence in question. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has acquitted the appellant from the offence under Section 294 of the IPC and has convicted and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 6. Learned counsel appearing for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the 5 prosecution witnesses and the evidence are not sufficient to hold the appellant guilty for the offence in question. The victim and the appellant had love affair and there was consensual relationship between them. Only on the pressure made by her parents the victim has made allegations against the appellant. She would further submit that for the alleged commission of offence dated 09-02-2022 the FIR was lodged on 25-07-2022 and in between that period the victim did not disclose the incident to anyone and she repeatedly engaged in making consensual physical relation upto 16-07-2022 which itself demonstrates that she was a consenting party in making physical relation with the appellant. It is also submitted that no injury or any mark of struggle was found on the body of the victim and the FSL report also does not corroborate the case of prosecution. She would further submit that age of the victim has also not been proved by producing sufficient and cogent evidence and there are material discrepancies in the evidence with respect to the age of the victim. Therefore, in absence of any cogent and clinching evidence, the appellant cannot be convicted and he is entitled for acquittal. 7. On the other hand, the counsel for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of the victim as well as other prosecution witnesses are reliable and sufficient to hold the appellant guilty for the alleged offence. He would further submit that absence of injury alone is not sufficient to disbelieve the 6 evidence of the victim who has duly supported the prosecution case. The age of the victim has also been proved by leading cogent evidence and documents obtained from the school of the victim which has been duly proved by the prosecution. As per the school record, the victim is found to be minor and less than 16 years of age. There are sufficient and overwhelming evidence against the appellant that he committed the alleged offence with the victim and the learned trial Court has rightly convicted and sentenced him and his appeal is liable to be dismissed. 8. We have heard the counsel for the parties and perused the records of the case. 9. The first and foremost question arose by learned counsel for the appellant is regarding the age of the victim. 10. The prosecution sought to prove the age of the victim by relying upon the school register Ex.-P/15(C) and Class 5th mark sheet of the victim Article A which was sought to be proved by PW-3, her school’s Head Master. PW-3 has stated in his evidence that the police has seized school register with respect to age and date of birth of the victim vide seizure memo Ex.-P/14 and after retaining the attested true copy of the school register Ex.-P/15(C) the original school register was returned back to the school which he brought today with him. In the school register the date of birth of the victim is recorded as 19-07-2008 and she admitted in the school in Class 1. In cross-examination he admitted that at the time of admission of the victim in the school her parents have not brought her birth certificate. He voluntarily stated that at the time of 7 her admission in the school he was not the Head Master of the school, therefore, he did not know the same. He also admitted that in the school register Ex.-P/15 there is over writing in the date of admission of the victim in the school, but who made the over writing he did not know. From the evidence of this witness it is clear that he is not the author of the school register and there is no document on the basis of which the date of birth of the victim is recorded in the the school register. 11. Admissibility and the evidentiary value of the school register has been considered by the Hon’ble Supreme Court in the case of Alamelu and Another Vs. State, represented by Inspector of Police, reported in 2011 (2) SCC 385, wherein the Supreme Court has observed as under in paragraphs 40, and 48 that : “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. 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. [(2006) 5 SCC 584] held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for 8 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 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." 12. 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 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- 9 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 10 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.” 13. Further, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, reported in 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 11 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. [2022 (8) SCC 602] 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 [2019] 9 SCR 735] that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 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 12 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 [(2012) 9 SCR 224], 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.” 14. Reverting to the facts of the present case, the victim PW-2 has stated that her date birth is 19-07-2008. In cross-examination para 9 she stated that she did not know the date of birth of her brother and sisters. She admitted that she disclosed her date of birth based on the school record. 15. PW-1 is the father of the victim. He has not disclosed any date of birth of the victim, but has stated that she born in the year 2008. In the cross-examination he admitted that he could not tell about the date of birth of his other children. The date of birth of the victim has not recorded in the kotwari register and since the police personnel have not enquired about the kotwari register he did not tell them about the same. He himself has not admitted her in the school but his mother has got 13 admitted her in the school and she informed her date of birth in the school. 16. PW-5 is the mother of the victim, she also did not state about the date of birth, but she disclosed the year of her birth as 2008. In cross- examination she admitted that her mother-in-law has got admitted the victim in the school. She also admitted that they have not got prepared the birth certificate of the victim and since her mother-in-law was illiterate lady, she got the date of birth of the victim recorded in the school on assumption. 17. The evidence produced by the prosecution with respect to the age of the victim does not inspire confidence of this Court that the prosecution has produced sufficient and cogent evidence to prove that the victim was minor and less than 18 years of age on the date of incident. In view of the above facts and evidence available on record and also in view of the aforesaid law laid down by the Hon’ble Supreme Court we are of the considered opinion that the prosecution has failed to prove that the victim was minor on the date of incident and less than 16 years of age, yet the learned trial Court has held her minor. 18. So far the offence of rape is concerned, we again carefully examine the evidence of the victim PW-2. She has stated in her evidence that on 16 February the appellant came to her house when she was alone and after removing his and her clothes committed rape upon her. When she tried to stop her and shouted he threatened her with dire consequence. Thereafter the appellant committed the same 14 act for about 6 times. Three months back when she was going to school, the appellant asked her to go with her and when she refused he abused and threatened her. After returning from the school she informed the incident to her grand-mother and parents and also informed about the earlier incident of rape and then her father has lodged the report to police. In cross-examination she stated that her grand-mother was used to reside in her house. Her house is adjacent to the houses of others where the neighbours are residing and if she shouted it will be heard to her neighbours. She admitted that in her 164 Cr.P.C. statement she has not disclosed that she raised alarm at the time of commission of rape upon her. She also admitted that she has not disclosed any incident to her friends or any person in the school. 19. In the present case, the victim alleged the incident of rape on dated 16 February, whereas the report has been lodged by her father on 25-07-2022 and in the FIR it has been mentioned that the appellant engaged in repeated act of rape up to 16-07-2022, which the victim has also stated in para 3 of her evidence. There is no any evidence that at any point of time she informed about the act of the appellant to either her friends or to any of the persons. Even she has not stated that she raised alarm at the time of commission of rape. Though she simply stated that she opposed the act of the appellant. Though the victim raised allegation of rape upon the appellant, but she could not depose the evidence with that quality which is required for conviction of the appellant for the offence of rape without corroboration. In the present 15 case, the victim cannot put to the platform of sterling witness as has been required for the same. 20. The Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar Vs. State of Bihar, 2020 (3) SSC 443, in which it was observed as under: “5.4.2 In the case of Rai Sandeep alias Deepu [Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21], this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under: “22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be 16 any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 21. PW-1 is the father of the victim and he has stated about the incident whatever disclosed by his daughter/victim to him. However, in cross-examination he also admitted that before the incident he did not see the appellant coming to his house or the appellant and the victim together. He is having no cordial relation with the appellant. 22. PW-5, mother of the victim has also stated about the same that she deposed on the basis of the disclosure made by the victim about the incident. 23. PW-10 Doctor Sabida who medically examined the victim does not find any external or internal injury on her body and gave her report Ex.-P/35, in the report she did not find any forceful sexual intercourse upon the body of the victim. Further, in the FSL report Ex.-P/32 no semen or sperms are found on the vaginal slide or underwear of the victim. Therefore, there is no corroboration to the evidence of the victim 17 with respect to the allegation leveled against the appellant that he committed rape upon her. 24. Since this court finds that the evidence of the victim does not inspire confidence of the Court with respect to the alleged incident, the allegation against the appellant for wrongful restraint the victim and criminal intimidation with threat to dire consequences are also not found proved in absence of cogent and clinching evidence and the appellant is entitled for benefit of doubt for that also. Therefore, as the cumulative effect of the evidence available on record, there are lack of corroboration and the evidence of the prosecution witnesses suffer from inherited contradictions and inconsistency for which the appellant is entitled for benefit of doubt and his conviction under Section 341 and 506 Part II of the IPC also cannot be sustained. Further, since no injuries has been found on the body of the victim and therefore, the offence under Section 323 of the IPC for voluntarily causing simple hurt to the victim is also found doubtful. 25. Accordingly, the appeal filed by the appellant is allowed. He is acquitted from all the alleged offences and the impugned judgment of conviction and sentence is set aside. The appellant is reported to be in jail since 26-07-2022. He shall be released forthwith if not required in any other case. 26. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Mansingh Nishad is directed to furnish a personal bond for a sum of Rs. 25,000/- with one 18 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. 27. The trial Court record 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 Aadil