1 2026:CGHC:18516 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 176 of 2007 Santu alias Satendra S/o Ganeshram Suryawanshi, aged about 20 years, Student, R/o Village Kosir, PS Pamgardh, Distt. Janjgir-Champa (CG) ... Appellant versus State Of Chhattisgarh through Station House Officer, Police Station Pamgardh, Distt. Janjgir-Champa (CG) ... Respondent For Appellant : Mr. DC Verma and Mr. Devashish Dara, Advocates. For Respondent : Mr. Kanhaiya Ram Yadav, Panel Lawyer. Hon'ble Smt. Justice Rajani Dubey, J Judgment On Board (23rd April, 2026) The appellant in this appeal calls in question the legality and validity of the judgment of conviction and order of sentence dated 28.12.2006 passed by Sessions Judge, Janjgir-Champa in ST No.46/2006 whereby the appellant stands convicted and sentenced as under: Conviction Sentence Under Section 363 of Indian Penal Code. RI for 03 years, pay a fine of Rs.1000/- and in default thereof to suffer additional RI for six months. Under Section 366 of Indian Penal Code. RI for 03 years, pay a fine of Rs.1000/- and in default thereof to suffer additional RI for six months. 2 Under Section 376(1) of Indian Penal Code. RI for seven years, pay a fine of Rs.1000/- and in default thereof to suffer additional RI for one year. All the sentences were directed to run concurrently. 02. Case of the prosecution, in brief, is that on 29.6.2006 the prosecutrix, a minor girl of about 15 years, along with her mother and sister had gone for labour work. However, in the evening she was sent back to home by her mother and sister for preparing food. While the prosecutrix was returning home, the accused/appellant met her near a pond and forcibly took her to Nariyara where he kept her in the house of his friend for 3-4 days and thereafter took her to Khapridand. The accused/appellant promised her of marrying her. However, on her refusal, he committed forcible sexual intercourse with her. On the missing report being lodged by her father on 4.7.2006, the police searched for the prosecutrix and she was recovered from the house of Khursaliram at Village Khapridand. She was got medically examined and her vaginal slides were prepared and seized. During investigation, spot maps were prepared, clothes of the prosecutrix were seized; her mark sheet as also admission-discharge register of the school were seized. The prosecutrix was also subjected to x-ray examination for ascertaining her age. The accused/appellant was taken into custody and his medical examination was also done. After completing usual investigation, charge sheet under Sections 363, 366 and 376 of IPC was filed against the accused/appellant. 03. Learned trial Court framed charges under Sections 363, 366 and 376(1) of IPC, which were abjured by him and he prayed for trial. In order to substantiate its case the prosecution examined 10 witnesses in all. Statement 3 of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, he examined one Smt. Shakuntala as DW-1. 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 in para 1 of this judgment. 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. Learned trial Court erred in relying upon the testimony of father of the prosecutrix which suffers from the vice of contradiction and omission as also improvement. Likewise, the testimony of the prosecutrix is also not reliable as there are material omission and contradiction in it especially on the point of age. Learned trial Court committed illegality in holding her minor by mis- appreciating Ex.P/22C i.e. admission-discharge register, Ex.P/23 i.e. certificate issued by the Principal of the Govt. High School regarding her date of birth recorded in admission-discharge register; the ossification test report and statements of the prosecutrix and her father. He submits that the admission-discharge register is not at all reliable because PW-10 Mulachand Krishna was in-charge of the Middle School, he cannot be an author of the said date of birth entry. The prosecution did not examine the author of the said entry. No legally admissible evidence proving the age of the prosecutrix has been adduced by the prosecution. This apart, looking to the statement of the prosecutrix and her conduct, it is evident that she was a consenting party to the act of the appellant and the trial Court also held so. Therefore, no case 4 is made out against the appellant and the impugned judgment is liable to be set aside. 06. 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 which calls for no interference by this Court. The present appeal being without any substance is, therefore, liable to be dismissed. 07. Heard learned counsel for the parties and perused the material available on record. 08. It is clear from the record of learned trial Court that the appellant was charged under Sections 363, 366 & 376(1) of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him under these sections as mentioned in the opening paragraph of this judgment. 09. As regards age of the prosecutrix, in her statement the prosecutrix (PW-1) states that she is 15 years old but does not remember her date of birth. Her father (PW-4) states that the prosecutrix is 15 years old. In cross- examination he states that he cannot tell the date of birth of his four daughters and the same is recorded with the Kotwar. He states that he married his eldest daughter in the year 2002; at that time she was major and that there is age difference of 1 – 1 ½ years amongst their daughters. PW-07 Dr. Anita Shrivastava examined the prosecutrix, she did not notice any internal or external injury on her body including private part. To ascertain her 5 age, she advised for her x-ray and radiological examination. According to the doctor, she was habitual to sexual intercourse. Her report is Ex.P/19. 10. PW-11 Dr. George M. Xaxa, radiologist, conducted x-ray examination of the prosecutrix and opined that she may be 15 to 17 years old. His report is Ex.P/21. In cross-examination he admits that there may be variation of two years on either side of the estimated age. However, he then volunteers that her minimum age is 15 years and maximum 17 years. 11. PW-10 Mulchand Krishna, Teacher in Govt. High School, Bhiloni, states that the prosecutrix was studying in Class VIII in their school and as per admission-discharge register (Ex.P/22) her date of birth is 12.6.1991. He states that he also issued a certificate regarding her date of birth i.e. Ex.P/23. However, in cross-examination he admits that there is no mention in the admission-discharge register as to at whose instance the said date of birth was recorded. He further states that there is also no basis for recording date of birth as 12.6.1991 and that the certificate issued by him is on the basis of admission-discharge register. 12. 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 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 6 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 7 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 the present case, the prosecution has heavily relied upon the entry regarding date of birth of the prosecutrix mentioned in the admission- discharge register (Ex.P/22C) wherein it is recorded as 12.6.1991. However, PW-10 Mulchand Krishna, Teacher in Govt. High School, Bhiloni, admits that there is no mention in the admission-discharge register as to at whose instance the said date of birth was recorded and also there is no basis for recording this date of birth. He states that the certificate issued by him is on the basis of admission-discharge register. The prosecution and her father though state that she is 15 years old but they admit that they do not remember the date of birth. Her father (PW-4) states that he married his eldest daughter in the year 2002; at that time she was major; the prosecutrix is his third daughter and that there is age difference of 1 – 1 ½ years amongst their daughters. This apart, PW-11 Dr. George M. Xaxa, radiologist, who conducted x-ray examination of the prosecutrix opined that she may be 15 to 17 years old and admits that there may be variation of two years on either side of the estimated age. Thus, in light of the aforesaid judgment of the Hon’ble Supreme Court, considering the oral and documentary evidence on record, this Court is of the opinion that there is no legally admissible evidence on record to prove that the prosecutrix was below 18 years of age on the date of incident, and rather it appears that she was major at the relevant point of time. 14. So far as offence of rape is concerned, from the statement of the prosecutrix it is evident that she stayed with the appellant at Nariyara for 3-4 days in the house of his friend where the appellant had physical relation with 8 her repeatedly. He also took her to Khapridand and had physical relation with her there too. She admits that the whole family of the appellant’s friend was in the house at Nariyara. She admits that while living at Nariyara and Khapridand, she did not tell anyone about the act of the appellant. DW-1 Shakuntala states that discussion was going on regarding marriage of the appellant with the prosecutrix but suddenly father of the prosecutrix refused to perform her marriage with the appellant. Thus, considering the manner in which the incident allegedly took place, the statement of the prosecutrix and her conduct throughout the incident coupled with the statement of DW-1, it is clear that the prosecutrix was a consenting party to the act of the appellant. Learned trial Court also held her to be a consenting party but only on the ground of she being below 16 years of age, held the appellant guilty under Sections 363, 366 & 376(1) of IPC. Since this Court has already held in the preceding paragraph that she was not below 18 years of age on the date of incident and the evidence on record goes to show that she was a consenting party, no offence as alleged against the appellant is made out. 15. In the result, the appeal is allowed and the impugned judgment of learned trial Court is hereby set aside. The appellant is acquitted of the charges under Sections 363, 366 and 376(1) of IPC. The appellant is reported to be on bail. Therefore, his bail bonds shall continue for a period of six months from today by virtue of provisions of Section 481 of BNSS, 2023. Sd/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2026.04.24 16:30:10 +0530