Rajnandgaon Chhattisgarh. , Chhattisgarh v. State Of Chhattisgarh Through P.S. Basantpur, Civil And Rev. Di
Case Details
1 CRA No.483 of 2016 SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.09.09 10:48:23 +0530 2025:CGHC:44946 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 483 of 2016 Monu @ Jitendra Rajak S/o Late Ramsharan Rajak Aged About 22 Years R/o Jamatpara, P.S. - Basantpur, Civil And Rev. District - Rajnandgaon Chhattisgarh. , Chhattisgarh ... Appellant versus State Of Chhattisgarh Through P.S. Basantpur, Civil And Rev. District Rajnandgaon Chhattisgarh. , Chhattisgarh ... Respondent (Cause title taken from CIS) For Appellant : Shri Rakesh Thakur, Advocate. For Respondent : Shri R.C.S. Deo, Panel Lawyer. Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board 03/09/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 26/02/2016 passed in Special Sessions Trial No. 27/2014 by the learned Additional Sessions Judge (Fast Track Court) and 2 CRA No.483 of 2016 Special Judge under POCSO Act, Rajnandgaon (C.G.), whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 450 of the IPC U/s 376(1) of the IPC R.I. for 07 years with fine of Rs. 2,000/-, with default stipulation. R.I. for 07 years with fine of Rs. 2,000/-, with default stipulation. U/s 3/4 of the POCSO Act R.I. for 07 years with fine of Rs. 2,000/-, with default stipulation. All the sentences were directed to run concurrently. 2. The prosecution story, in brief, is that the complainant PW-8 had lodged a written report (Ex.P-2) before the Police Station Basantpur to the effect that she is a resident of village Bihri Kala, Ambagarh Chowki. The victim (PW-4) came to her house as a guest on 26.03.2014. On 28.03.2014 her maternal aunt told her over phone that Monu Rajak had raped the victim. When she asked the victim about the incident, she told her that the accused Monu Rajak who lives in neighborhood with his family in Jamaat Para, whom she used to call bhaiya, had raped her on 22.03.2014. On 22.03.2014 at about 11.00 pm, Monu Rajak entered the room suddenly by opening the door and started molesting her on her private parts with bad intentions. When she tried to shout for help, Monu Rajak tied her hands with a cloth and gagged her mouth. When she got up and tried to run away, Monu Rajak threw her on the cot and gagged her mouth. Thereafter, he took off his and her clothes and raped her. The accused molested her body parts by doing obscene acts, due to which, she had scratches on her body 3 CRA No.483 of 2016 and there are marks of teeth bites on her right hand. She saw the accused, who was Monu Rajak, in the light coming from the hall when he opened the door and stepped out. On the basis of the
Facts
written report lodged by PW/8, an FIR has been registered against the accused and investigation started. 3. During investigation, Spot Map was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P/7C), Radiologist report (Ex.P/28) and Mark Sheet of Primary School (Article A) were seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. In order to bring home the offence, the prosecution has examined 14 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 26.02.2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.
Legal Reasoning
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 8 CRA No.483 of 2016 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 his accused would be deprived of constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 16. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various 9 CRA No.483 of 2016 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. 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 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 sufÏcient 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 scrutinized and accepted only if worthy of such acceptance. 10 CRA No.483 of 2016 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 ofÏcial document maintained in the discharge of ofÏcial 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." 11 CRA No.483 of 2016 17. 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 OfÏcial (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: 12 CRA No.483 of 2016 "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 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 13 CRA No.483 of 2016 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." 18. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. Hence, in absence of cogent proof regarding the date of birth of the victim, the finding of the learned trial Court that the victim was a minor on the date of incident cannot be acceptable. Therefore, the conviction and sentence imposed upon the appellant under Section 3/4 of the POCSO Act is not made out. 19. Even if we consider the age of victim as 16 years, as has been pleaded by the prosecution, the Supreme Court in the matter of Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir and others1, has held that a judicial notice can be taken that the margin of error in age ascertained by Radiological examination is two years on either side. Relevant para of the said judgment states as under:- “9. Detenu was arrested and detained on Oct. 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process 1 AIR 1982 SC 1297 14 CRA No.483 of 2016 and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheavel in the educational institutions. This young school going boy may be enthusiastic about the students’ rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed.” 20. Very recently in the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, the Supreme Court has held that the victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. Relevant para of the said judgment states as under:- “16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence 15 CRA No.483 of 2016 under Sections 363 and 366 IPC would still not be made out. 17. This Court in the case of S. Vardarajan v. State of Madras, reported in 1964 SCC OnLine SC 36 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus: “7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's ofÏce and got the 16 CRA No.483 of 2016 agreement of marriage registered there (thinking that this was sufÏcient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….” 18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her. 17 CRA No.483 of 2016 19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun.” 21. Now the question that arises before this Court for consideration is whether the appellant committed the offence under Section 450 of the Indian Penal Code, which pertains to house-trespass in order to commit an offence punishable with imprisonment for life. In this regard, the Court finds that no proper or convincing evidence has been brought on record to substantiate the charge against the appellant. The prosecution has failed to establish the essential ingredients required under Section 450 IPC, such as the specific intent of the appellant to commit an offence punishable with life imprisonment, as well as the unlawful entry into the premises in question. Furthermore, there appears to be a lack of credible eyewitness testimony or corroborative material linking the appellant directly to the act of house-trespass with the requisite criminal intent. The inconsistencies in the statements of key witnesses, coupled with the absence of circumstantial or crucial evidence, further weaken the prosecution’s case. Given the principle that the burden of proof lies on the prosecution to establish the guilt of the accused beyond reasonable doubt, the existing material falls short of the legal threshold required for a conviction under Section 450 IPC. Therefore, in the absence of concrete and reliable evidence, it would not be justifiable to hold the appellant guilty of the offence as charged. 22. 23. 18 CRA No.483 of 2016 Now the last question for consideration comes before this Court that whether the appellant has committed the heinous crime such as rape upon the victim or not. In this regard, the evidence of prosecutrix (PW-4) and her father (PW-10) have profoundly been analyzed and upon overall appreciation of the evidence of the prosecutrix, it is apparent that her testimony suffers from material contradictions and inconsistencies. While she alleged that the appellant had entered her room during the night and committed rape, in cross- examination she admitted that she did not immediately disclose the incident either to her father, who was present in the house, or to the mother and sister of the accused, or even to her own brothers who returned that very night. Further, she gave varying versions regarding when and to whom she first disclosed the incident at one place stating that she told her sister-in-law at Ambagarh Police Station, at another place asserting that she first disclosed the incident to her friend PW-11, and at yet another point admitting that her father came to know from her friend. The prosecutrix also contradicted herself on whether her hands were tied, whether she resisted the act, and on the manner in which her clothes were removed. These contradictions in her statement, when read conjointly with the deposition of her father (PW-10), who did not support the allegation of immediate disclosure and not corroborate the version of the prosecution, create serious doubt about the prosecution case. In absence of cogent, consistent and trustworthy 19 CRA No.483 of 2016 evidence, the prosecution has failed to establish the charge of rape against the appellant beyond reasonable doubt. 24. PW/9 stated in her deposition that she knows the victim and the accused. She came to know that the accused has raped the victim. She stated that she does not remember how many days ago the incident took place. The testimony of PW/9, does not support the prosecution's case. Throughout her deposition, she repeatedly stated that she had no direct knowledge of the incident involving the victim. She denied being informed by the victim or her family about the alleged assault, claiming she did not know why certain details were recorded. Additionally, she admitted that the victim never personally told her anything about the incident, and her knowledge was based only on neighborhood discussions. In her cross-examination, categorically stated that the victim had not told her anything about the incident even till date. She further admitted that although there was some general discussion about the victim at the community water tap, she had no knowledge of who was involved in the incident, nor was there any detailed discussion about it. These admissions clearly indicate that the witness has no direct or reliable information regarding the alleged offence and cannot be considered a supporting witness for the prosecution. Her testimony lacks substance and fails to establish any material fact in furtherance of the prosecution’s case. Her overall statement reflects uncertainty and a lack of firsthand information, thereby failing to corroborate the prosecution's version 20 CRA No.483 of 2016 of events. 25. According to the medical examination conducted by Dr. Sohadra Thakur (PW-7) on 29.03.2014, no conclusive evidence of rape was found. The doctor clearly stated that there were no external injury marks on the victim's body, no injuries on the genitals, and the hymen was intact. Although one finger could be inserted halfway into the vagina with pain, no signs of forced intercourse were observed, and the doctor refrained from giving any definite opinion about sexual intercourse. Additionally, the vaginal slides and the stained underwear collected during the examination were sent for chemical analysis, but there is no indication from the record that any findings from the Forensic Science Laboratory (FSL) confirmed the occurrence of rape. This witness further stated that there is no signs of forced intercourse on the victim at that time has been found and nowhere in the medical report have the doctor given any definite opinion about forcible sexual intercourse. Thus, in view of both the medical and FSL reports, no case of rape is made out against the appellant based on the available evidence. Besides this, the prosecution has not produced any further scientific or corroborative evidence to connect the accused with the alleged offence. 26. Upon perusal of the overall evidence and testimonies on record, it emerges that the victim appears to have been a consenting party to the act in question. The prosecution's case suffers from serious inconsistencies and lack of corroborative evidence to establish 21 CRA No.483 of 2016 force or coercion. The testimony of PW/9, who was initially cited as a supporting witness, fails to lend credence to the allegation of rape, as she clearly stated in her cross-examination that the victim never informed her about any such incident, and her knowledge was limited to general discussions in the neighbourhood. Furthermore, the medical evidence provided by Dr. Sohadra Thakur (PW-7) reveals no signs of physical injury, no injuries on the genitals, and an intact hymen, which strongly suggests the absence of any forced or non-consensual act. The doctor explicitly stated that no definite opinion regarding sexual intercourse could be given and no signs of force were found on the victim’s body. Even the forensic evidence, including the examination of vaginal slides and stained underwear, did not conclusively establish rape. In absence of medical or ocular evidence indicating the use of force or resistance by the victim, and considering the age, mental capacity, and conduct of the prosecutrix as seen through the sequence of events, it becomes evident that the narrative presented by the prosecution does not withstand scrutiny. Taken together, these factors lead to the inference that the act, if it occurred at all, may have taken place with the consent of the prosecutrix, and the prosecution has failed to prove beyond reasonable doubt that the physical relationship was non- consensual or forced. 27. Applying the principle of law laid down by the Supreme Court to the facts of the present case and considering the overall evidence 22 CRA No.483 of 2016 available on record, it is manifest that the case of the prosecution does not conclusively connect the appellant with the alleged offence and creates doubt regarding the prosecution version, entitling the appellant to the benefit of doubt. 28. As a fallout and consequence of the aforesaid legal analysis, the impugned judgment dated 26/02/2016 is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal Appeal is allowed. 29. 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. (Bibhu Datta Guru) Judge Sd/- $. Bhilwar
Arguments
Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that 4. 5. 6. 7. 4 CRA No.483 of 2016 the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. Learned counsel would submit that the prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident. Hence, without there being any cogent evidence with regard to the age of the Victim, the conviction of the appellant is bad in the eyes of law. 8. On the other hand, learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. The first question for consideration would be, whether the victim was minor on the date of incident or not. The victim was examined as PW/4, has categorically stated regarding her date of birth that her date of birth is 11.09.1999. The mark sheet attached with the charge sheet is Article-A. On being asked about the date of birth again, she stated that her actual date 9. 10. 11. 5 CRA No.483 of 2016 of birth is 11.09.1999, however the teacher had mistakenly written it as 10.09.1999. She further negated the fact that her birth year is 1996, her birth year is 1999. 12. According to this witness, the date of birth provided cannot be considered reliable. The witness raised concerns about the accuracy and consistency of the information, suggesting that it may have been either incorrectly recorded or deliberately misrepresented. As a result, the credibility of the stated birth date is questionable and should be verified through additional, independent documentation. 13. As regards, Mr. Sudhir Thakur, Assistant Teacher (PW-5) posted at Govt. Girls Primary School No. 2, Rajnandgaon since July 2009, stated that upon being asked by the police, he had submitted the Dakhil Kharij register which was seized whose photocopy was certified by him. On page No.74 of the admission register, date of birth of the victim was mention as 10.09.1999. The original Dakhil Kharij register is Ex.P-7 and the photocopy attached to the record is Ex.P-7C. In his cross-examination, upon a query being asked about the entry made in the register that whether you or your institution had the Kotwari register, birth certificate, afÏdavit or any document given by a doctor in front of you when victim’s father was made you to enter the date of birth, he categorically stated that he was not posted there at that time, so he does not have any information in this regard. 6 CRA No.483 of 2016 14. Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij register is contradictory, unsupportive to the statements of their own statements and on what basis, the entry was made, is not mentioned in the register, whatsoever mentioned in the register is ordeal in nature. 15. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, 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 7 CRA No.483 of 2016 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."