1 2026:CGHC:19063 The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 20-03-2026 25-04-2026 - 25-04-2026 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on : 20-03-2026 Judgment delivered on : 25-04-2026 CRA No. 524 of 2008 Ajit Kumar Ekka S/o Teofil Ekka, Aged About 22 Years Occupation Agriculture, R/o Village Dhanitoli (Kandora), Tahsil Jashpur -Nagar, District Jashpur (C.G.) ... Appellant versus State Of Chhattisgarh Through S.H.O., P.S. Aasta, Tahsil -Jashpur- Nagar, District Jashpur (C.G.) ... Respondent For Appellant : Mr. Rishikant Mahobia, Advocate. For Respondent : Mr. Himanshu Yadu, Panel Lawyer. Hon'ble Smt. Justice Rajani Dubey CAV Judgment The appellant in this appeal calls in question the legality and validity of the judgment of conviction and order of sentence dated 2 21.5.2008 passed by Sessions Judge, Jashpur in ST No.88/2007 convicting the appellant under Section 376(1) of IPC and sentencing him to undergo RI for eight years. 02. Case of the prosecution, in brief, is that the accused/appellant has been making physical relations with the prosecutrix, a minor girl of 16 years, for a period of about three years prior to 22.3.2007 on the pretext of marriage as a result thereof she became pregnant and then she informed to her parents about this relationship. Thereafter, a village meeting was held on 19.10.2006 where the accused refused to marry her. She delivered a male child on 20.1.2007. On the report of the prosecutrix, offence under Section 376 of IPC was registered against the accused. During investigation, statements of the witnesses were recorded, spot map was prepared, marksheet and birth certificate of the prosecutrix as also admission-discharge register of the school were seized and her medical examination was got done. After completing usual investigation charge sheet u/s 376 of IPC was filed against the accused before the concerned jurisdictional Magistrate. 03. Learned trial Court framed charge under Section 376(1) of IPC against the accused which was abjured by him and he prayed for trial. In order to substantiate its case the prosecution examined 07 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances 3 appearing against him in the prosecution case, pleaded innocence and false implication. 04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the accused/appellant as mentioned above. Hence this appeal. 05. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. The prosecutrix (PW-1) admits that she does not know her date of birth. Her father (PW-2) also states that he does not know her date of birth. He also states that he does not know as to what date of birth of the prosecutrix is recorded in the school and who filled the admission form. PW-5 Amrit Lal Ekka, Shikshakarmi admits in para 6 of his deposition that in the original register at S.No.18, there is overwriting in the year. Furthermore, PW-4 Dr. Manju Minj opined for x- ray of the prosecutrix to determine her age, however, no radiologist has been examined by the prosecution. PW-4 Dr. Minj in para 11 states that the prosecutrix appears to be above 16 years and below 18 years and in cross-examination she admits that there may be variation of two years on either side of her age. It is thus crystal clear that the prosecution has utterly failed to prove by leading cogent evidence that the prosecutrix was minor on the date of incident. 4 06. Learned counsel further argued that from the statement of the prosecutrix and her conduct it is clear that she was a consenting party to the act of the appellant. She admits that there was love affair between them and she disclosed this relationship only when she became pregnant. The prosecutrix and her son filed an application u/s 125 of CrPC for maintenance (Ex.D/1) on the ground that the appellant and the prosecutrix were husband and wife. This goes to show that there was no rape on her by the appellant and their relationship was consensual. Lastly he submitted that no DNA test was conducted to ascertain the paternity of the child of the prosecutrix and the trial Court erred in holding the appellant as father of that child merely on the basis of blood group. Therefore, the impugned judgment is liable to be set aside and the appellant deserves to be acquitted of the charge leveled against him. Reliance has been placed on the order dated 7.10.2021 of this Court in CRA No.2839/1999 in the matter of Satyanarayan @ Kanabat and others Vs. State of MP (Now CG) and the judgment dated 18.3.2025 of the Division Bench in CRA No.1035/2019 in the matter of Vinod Nat Vs. State of CG. 07. On the other hand, learned counsel for the State opposing the contention of the appellant would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment 5 which calls for no interference by this Court. The present appeal being without any substance is, therefore, liable to be dismissed. 08. Heard learned counsel for the parties and perused the material available on record. 09. It is clear from the record of learned trial Court that the appellant was charged under Section 376(1) of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him under this section as mentioned in the opening paragraph of this judgment. 10. Learned trial Court found that on the date of incident the prosecutrix was above the age of 16 years and below 18 years. Prosecutrix (PW-1) states that she does not remember her date of birth. As per primary school certificate (Ex.P/7) wherein her date of birth is mentioned as 4.7.1990, she was minor on the date of incident. PW-4 Dr. Manju Minj states that as per x-ray of the prosecutrix, she appears to be above 16 and below 18 years of age. Her x-ray film is Ex.P/11 and the report given by PW-4 is Ex.P/12. In cross-examination she admits that there is variation of two years on either side of the estimated age. 11. PW-5 Amrit Lal Ekaa, teacher of primary school, produced the admission-discharge register of the school where the prosecutrix was studying in Class V. He states that in this register, name of the 6 prosecutrix is at Sl.No.18 and her date of birth recorded as 4.7.1990. He states that the said entry was made by him on 1.7.1996. He states that this date of birth was recorded at the instance of her father. The said register is Ex.P/16. In cross-examination he admits the suggestion of defence that there is overwriting in the year of birth in the said register of Ex.P/16 and his signature is not there regarding this entry at Sl.No.18. He admits that at the time of admission of the child, his/her guardian fills up admission form. He admits that no admission form of the prosecutrix was filled up and her name was directly written in the register. He also admits that at the time of children’s admission, documents regarding date of birth are not called for from the Kotwar. 12. It is thus clear from the admission-discharge register that some manipulation was done in the year of birth of the prosecutrix. Ex.P/7 is the photocopy of Primary School Certificate of the prosecutrix. No original was produced by the prosecution before the trial Court. Both these documents appear to be doubtful. The doctor (PW-4) admitted that there is variation of two years on either side of the estimated age. 13. This Court in the matter of Vinod Nat (supra) observed in paras 15 & 16 of its judgment as under: “15. The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment as under: “40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th 7 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.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 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 8 his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 16. In light of above, in the present case, it is clear that mother, father and prosecutrix did not remember the actual date of birth. Principal- Smt. Uttara Sud (P.W.-3) is not the author of entry made in the school Dakhil Kharij Register and she admitted that the said entry was made by another teacher namely Sangeeta Verma but prosecution did not examine the said teacher before the learned trial Court. Thus, it is clear that prosecution has failed to prove this fact that prosecutrix was below 16 years of age on the date of incident.” 14. In the present case also, the prosecution has failed to adduce any legally admissible and clinching evidence regarding age of the prosecutrix and thus failed to prove that she was below 16 years of age on the date of incident but the learned trial Court without properly appreciating the oral and documentary evidence recorded an erroneous finding that she was below 16 years of age on the date of incident. Hence this finding being not legally sustainable is hereby set aside. 15. PW-1 prosecutrix clearly admits that she was in love with the appellant and when she delivered a child, a village meeting was convened where the appellant refused to keep her and he kept another girl and thereafter the matter was reported to the police. In cross- examination she admits the suggestion of defence that there was 9 physical relation between them since 2004 to 2006. She also admits that had the accused accepted her, report would not have been lodged. 16. PW-2 father of the prosecutrix states that when his daughter became pregnant, a village meeting was held where she disclosed that there was love affair with the appellant for the last two years. However, no decision was taken in the said meeting and she delivered a child on 20th January. Thereafter, a report was lodged with the police. 17. PW-3 Alvis states that a village meeting was held where the prosecutrix disclosed that she became pregnant from the accused. He states that the accused told that he would keep the child but not the prosecutrix and therefore, a report was lodged. He admits that had the accused kept the prosecutrix with him, report would not have been lodged. 18. PW-4 Dr. Manju Minj examined the prosecutrix and found that she delivered a child before two months and gave her report Ex.P/9. PW-7 US Singh produced birth register of police station wherein the date of birth of the child of prosecutrix is recorded as 20.1.2007, and his father’s name is Ajit Ekka and mother’s name is of prosecutrix. The birth register is Ex.P/17. In cross-examination he admits the suggestion that this entry was made at the behest of the prosecutrix. 19. It is pertinent to mention here that no DNA test was conducted by the prosecution in this case to ascertain paternity of the said child. The 10 conduct and testimony of the prosecutrix and other witnesses strongly indicate a voluntary relationship. The prosecutrix admitted a long- standing love affair and continuous physical relations over 2–3 years. She acknowledged that the complaint was made only after the accused refused to marry her. Witnesses (PW-2 and PW-3) confirmed that the dispute arose after pregnancy and refusal of marriage. It was also admitted that had the accused accepted her, no report would have been lodged. No evidence of coercion, force, or misconception of fact is there. There is no material to show that consent was obtained by force or by a false promise of marriage. A mere breach of promise to marry, without proof that the promise was false at the beginning, does not amount to rape. Though a child was born, no DNA test was conducted. The entry in the birth register naming the accused as father is based on information supplied by the prosecutrix and has weak evidentiary value. All these deficiencies in the prosecution case create a reasonable doubt, which must operate in favour of the accused. However, the learned trial Court did not properly appreciate the oral and documentary evidence on record and thus came to an erroneous conclusion of guilt of the accused which is not legally sustainable. 20. In the result, the appeal is allowed. The impugned judgment dated 21.5.2008 passed in ST No.88/2007 by learned trial Court is hereby set aside. The appellant is acquitted of the charge under Section 376(1) of IPC. 11 21. The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 he is directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, he shall on receipt of notice thereon appear before the Hon'ble Supreme Court. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. A copy of this judgment be also forwarded to the concerned Jail Superintendent for information and necessary action. Sd/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2026.04.25 14:08:59 +0530