1 - Gangaram Kewat S/o Shri Dukhiram Kewat Aged About 20 Years R/o Village v. 1 - State Of Chhattisgarh Through The District Magistrate, Balodabazar, District Balodabazar-Bhatapara
Case Details
1 2025:CGHC:10489-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1182 of 2022 1 - Gangaram Kewat S/o Shri Dukhiram Kewat Aged About 20 Years R/o Village Dadhapara Kasdol, Thana Kasdol, Distt. Balodabazar-Bhatapara (C.G.) ... appellant versus 1 - State Of Chhattisgarh Through The District Magistrate, Balodabazar, District Balodabazar-Bhatapara (C.G.) ... Respondent(s) For appellant For Respondent(s) : : Mr. Sunil Sahu, Advocate Mr. Malay Kumar Jain, Dy. G.A. Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 04. 03.2025 1. The present criminal appeal has been fined under Section 374 (2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 30/06/2022 passed by learned Additional Judge, FTSC (POCSO Act) Balodabazar (C.G.) In Special Criminal Case 2 (POCSO) No. 73/2020 whereby the appellant has been convicted and sentenced as below:- S.No. Conviction Sentence 1. Under Section 363 of IPC R.I. for 05 years and fine of Rs. 500/- in default of fine additional R.I. for 6 months. 2. Under Section 366 of IPC R.I. for 05 years and fine of Rs. 500/- in default of fine additional R.I. for 6 months. 3. Under Section 04 of Protection of R.I. for 20 years and fine of Rs. 1000/- Children’s from sexual offences in default of fine additional R.I. for 6 Act, 2012. months. (all the sentences shall run concurrently & fine amount has been deposited on 30.06.2022)
Facts
2. Brief facts of the case are that on 15/10/2020, at about 22.30 pm the father of the victim (PW/4) gave a missing report to the Police that his minor daughter is missing since 15/10/2020 at about 12 in the noon who had gone to the grocery shop of the vicinity but has not returned back, despite her search, her whereabouts could not be traced out. The Police has registered the offence under Section 363 of IPC against the unknown persons, through the FIR (Ex-P/1). During the investigation, the victim was recovered on 16/10/2020 from the possession of the appellant and recovery Panchanama (Ex-P/4) was prepared in presence of the witnesses. The victim was sent for her medical examination to District Hospital, Balodabazar where PW-11 Dr. Karuna Yadav has examined her and gave her medical report (Ex-P/22A). While examining the victim the doctor has not found any injury over her body and opined that there is no sign of recent intercourse though no definite opinion can be given for recent intercourse. Her UPT test was negative. Two slides of her vaginal swab were also prepared, sealed and handed over to the Police for FSL examination. Spot map (Ex-P/2) was prepared by the 3 Police and (Ex-P/3) was prepared by the Patwari. With respect to the date of birth and age of the victim, the Police has seized the Class-2 progress report card of the victim vide seizure memo (EX-P/7). The school register with respect to the date of birth of the victim has also been seized from Govt. Primary School, Indra Colony Kasdole vide seizure memo (Ex-P/11) and after retaining its attested true copy of the school register, the original register was returned back to the school. The appellant was arrested on 16/10/2020 and he too was sent for medical examination to the Community Health Centre, Kasdone where PW-12 Dr. Anjan Singh Chouhan has examined him and gave his report Ex- P/36 by which the appellant was found to be capable to perform sexual intercourse. The underwear of the victim has been seized vide seizure memo (Ex-P/8), underwear of the appellant has also been seized vide seizure memo Ex-P/9 and a motor cycle has been seized from the appellant vide seizure memo (EX-P/10). The slides of the vaginal smear of the victim, underwear of the victim and underwear of the appellant were sent for FSL examination to Regional FSL, Raipur, from where Report (Ex- P/32) was received and according to which the semen and sperms were not found on the send articles. Statement under Section 164 of Cr.P.C. of the victim was recorded. The statement under Section 161 of the prosecution witness have also been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under Sections 363, 366 & 376 of IPC & under Section 4, 6, 17 and 18 of POCSO Act before the trial Court. 3. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 366, 376 of IPC and Sections 3A/4 & 5(l)/6 of POCSO Act. The appellant denied the charge and claimed trial. 4. In order to prove the charge, the prosecution has examined as many as 13 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also 4 been recorded in which he denied the material appears against him, plead innocence and submitted that he has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in Para-1 of this judgment. Hence this appeal.
Legal Reasoning
42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth 7 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." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfercertificate 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 8 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 victim although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 13. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX 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- 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 9 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. order to ensure that the benefit of the This is in JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board 10 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." 14. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to thedescription 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 11 determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the 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 fromthe school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as 12 well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference." 15. (PW/2) the victim has stated in her evidence that her date of birth is 01/01/2005. In cross-examination, she stated that she could not know the date of birth of her brother and sisters. She has got admitted in the school by her father. She did not know as to whether at the time of her admission in the school, her date of birth was recorded on the basis on assumption or not. 16.PW/1, who is the mother of the victim, she has not disclosed any date of birth of the victim and has stated that the victim is her youngest daughter. At the time of incident, the victim was aged about 14 years and 9 months. In cross- examination, she admitted that she did not know the date of birth of her children. She further admitted that since she and her husband are illiterate, therefore, the victim was got admitted in the school by her brother in law and she and her husband had not gone to her school for her admission. She did not know as to whether her brother in law has got recorded the date of birth of the victim in the school on assumption. She voluntarily stated that the birth of the victim was also got recorded in birth register of Nagar Panchayat. She denied the suggestion given by the defence that she disclosed the age of victim on the instruction of her brother in law and voluntarily stated that she disclosed the age of victim on the basis of her school record. 17.(PW/4) who is the father of the victim. He too has not disclosed any date of birth of victim and stated that on the date of incident, the victim was aged about 14 years and 9 months. In cross-examination, he also admitted that he did not know the date of birth of any of his children. The victim has got 13 admitted in the school by his brother. He did not know as to the age of her daughters are 24, 22, 20 and 18 years respectively. 18.PW/3 is the maternal uncle of the victim, he too has disclosed that the victim was aged about 14 years and 9 months on the date of incident but has not disclosed the date of her birth. In cross-examination, he stated that he is disclosing the fact whatever his sister has disclosed to him. He admitted that he has not seen the birth certificate of the victim and voluntarily stated that the year of birth of the victim is 2006. He celebrated her sixth day function of her birth, therefore, he is having knowledge of her birth. From all these evidences, it is apparent that the author of the school register have not been produced by the prosecution. The victim (PW/2) did not know the date of birth of her brother and sister and stated that she was being admitted in the school by her father but did not know that her date of birth was entered in the school register on assumption. Her mother (PW/1) also did not know her date of birth and she stated that she was got admitted in the school by her brother in law and she stated the age of victim on the basis of entries in the school register. The father of the victim (PW/4) has also not given any date of her birth. He himself has not got her admitted in the school but his brother has taken her school for her admission as his brother has not been examined in the case. The maternal uncle of the victim has stated that the birth year of the victim is 2006 and he celebrated her 6 th day function after her birth. There is material discrepancies in the evidence of these witnesses, the victim has stated in para 4 of her evidence that her date of birth is 01.01.2005 whereas her material uncle has stated that the birth year of the victim is 2006, therefore, in the above facts and circumstances of the case, it can safely be hold that the prosecution has failed to prove the age of the victim by producing cogent and clinching evidence that she was minor on the date of incident and the benefit goes to the accused, yet the learned trial Court has held her minor. 14 19. So far as, the offence of kidnapping and rape are concerned, we again examined the evidence of witnesses. 20.The PW/2 the victim has stated in her evidence that on 15.10.2020 at about 1.25 pm, she had gone with the appellant to Village- Pikari on his motor cycle. He took her to his maternal uncle’s house where they stayed for one day, thereafter the Police has recovered them and took them to Police Station. When the leading question was asked from her, she denied that she regularly met with the appellant, both of them were regularly went towards Siddh Baba Jungle and appellant committed sexual intercourse with her regularly on the pretext of marriage. She also denied that the appellant gave her a mobile phone through which they were talking to each other. She denied by giving the Police statement (Ex-P/14). In cross-examination, she admitted that the appellant took her by his motor cycle towards Shitala Chowk. The Police Station was also situated near Shitla Chowk. She also admitted that the place from where the appellant took her with him is a busy and dense locality and the houses of the other persons were also situated. While going with the appellant to Village- Pikari, they crossed the village- Sale, Chichari and other villages, she has not made any complaint to anyone on the way. She further admitted that a number of persons were there on the way but she has not disclosed to anyone that the appellant has kidnapped her. She was sitting in the motor cycle behind the appellant but did not try to jump from the motor cycle. She further admitted that in her police statement she did not disclose that the appellant had kidnapped her. From perusal of her 164 Cr.P.C. statement (Ex-P/14) and 161 Cr.P.C. statement (Ex-P/14) (both marked as Ex-P/14), it is quite vivid that in both these statements, she disclosed that both of them were known to each other and regularly talk to each other by mobile phone, before eloping with him, both of them having physical relation and he has not made physical relation with her by force but on the pretext of marriage he was making physical relation with her. From 15 these two statements, it appears that the victim was in love affair with the appellant, both of them were talking to each other regularly and she was engaged in making physical relation with the appellant even prior to the date of incident and their elopement but she has not made any complaint and has not protested against the act of the appellant and engaged in making consensual physical relation regularly even while eloping with the appellant and going with him by his motor cycle, she has not raised any alarm and has not made any complaint to anyone on the way that the appellant is kidnapping her. 21.In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Para 9 and Para 10 of its judgment that:- “9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or 16 a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". 22. PW/1 the mother of the victim has not fully supported the prosecution’s case and she denied that she was having knowledge about the relationship between the victim and the appellant and their earlier conduct. Her evidence is not supported the evidence of the victim likewise her father is also not supported the evidence of victim and he too has denied the fact that he was having knowledge about their previous relation. 23.PW/11, Dr. Karuna Yadav who medically examined the victim on 17.10.2020 and has not found any external injuries on her body and no sign of struggle seen by her. Even in the FSL report (Ex-P/32) no semen or sperms were found on the vaginal slides or her underwear and even no semen were found on the underwear of the appellant. From all these evidences, it cannot be said that the victim was subjected to rape by the appellant against her will or consent, rather the evidence available on record clearly suggests that the victim was in love affair with the appellant and she herself on her own will eloped with him and engaged in making consensual physical relation which definitely does not comes under the definition of kidnapping or rape. 24.The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of 17 the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 25.From the foregoing reasons, we do not find any ground to uphold the conviction and sentence passed against the appellant by the learned trial Court and in the result the appeal filed by the appellant is Allowed. The judgment of conviction and sentences passed against the appellant are set aside. The appellant is acquitted from all the charges. The appellant is reported to be in jail since 06/10/2020. He be released forthwith if not required in any other case. 26.Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the appellant is directed to furnish a personal bond of sum of Rs.25,000/- with one reliable 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 immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) Judge (Ramesh Sinha) Chief Justice Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.03.25 10:56:30 +0530
Arguments
6. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the offence. The prosecution has failed to prove its case beyond reasonable doubt. There is no legally admissible evidence produced by the prosecution with respect to the age of the victim so as to hold that on the date of the incident she was minor and below 18 years of age. Although, the School Register of the victim was seized by the Police but in absence of examination of its author, the same cannot be taken into consideration for determination of the age of the victim. No any Kotwari Register, Birth Certificate or Ossification Test report have been filed by the prosecution to hold that the victim was minor on the date of incident. He would further argue that the victim being a major girl, has voluntarily went along with the appellant and not raised any objection in making physical relation with him. In view of the age and conduct of the victim and also the nature of allegation leveled against the appellant, the alleged offences are not made out against him and he is entitled for acquittal. 7. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case by leading evidence that on the date of incident the victim was minor and less than 18 years of age. The School Register (Ex-P/18C & P/20C) as well as certificate issued by the Head Master of the school (Ex-P/19) are proved by PW/6, who is the Head Master of the school. The victim is the minor girl, she cannot consented for sexual intercourse and the appellant kept her with him for a considerable period and has made sexual relation with her which comes under the definition of 5 rape and therefore the trial court has rightly convicted the appellant and the impugned judgment of conviction and sentence needs no interference. 8. We have heard learned counsel for the parties and perused the record. 9. The first question arose in the case as to whether the victim was minor and less than 18 years of age on the date of incident or not. 10.The prosecution has mainly relied upon the School Register (Ex-P/18C & P/20C) as well as certificate issued by the Head Master of the school (Ex-P/19) which are sought to be proved by PW/6, who is the Head Master of the school. He stated in his evidence that he was posted as Head Master in the school. The Police has seized the school register with respect to the date of birth of the victim and seized the same vide seizure memo (Ex-P/11) after retaining the attested true copy of the (Ex-P/18C) and affidavit register (Ex-P/20C), the original registers have been returned back to the school. He also issued school admission and discharge certificate on the basis of the school register which is (Ex-P/19). As per the school record, the date of birth of the victim is 01/01/2006. In cross-examination, he stated that the victim has got admitted in the school on 17/06/2011 and he was not posted in the school in the year 2011. He admitted that the entries in the school register (Ex-P/20) have not been made by him. He further admitted that the basis on which the date of birth of the victim was recorded in the school register (Ex-P/20C) have not been mentioned and the relevant entries in the school register (Ex-P/18) have been made on the basis of entries in the affidavit register (Ex-P/20). He issued a certificate (Ex-P/19) on the basis of the said entries made in the school register (Ex-P/18) and (Ex-P/20). From the evidence of this witness, it is quite vivid that he neither the author of the school register nor the basis on which the entries have been made in the school register are produced by the prosecution. 11. The relevancy of school admission and discharge register came for hearing before Hon’ble Supreme Court in Alamelu and Another Vs. State, 6 represented by Inspector of Police, 2011 (2) SCC 389, the Hon’ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was recorded. 12. 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.