High Court of Chhattisgarh
Case Details
1 CRA No.230 of 2016 2025:CGHC:45615 NAFR AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.09.11 18:24:55 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 230 of 2016 Pravin Sahu S/o Shri Niranjan Sahu Aged About 20 Years R/o Village Charbhatha, Police Station Saankara, District Mahasamund, Chhattisgarh., Chhattisgarh versus ... Appellant State of Chhattisgarh Through P.S. Saankara, District Mahasamund, Chhattisgarh., Chhattisgarh ... Respondent (Cause title taken from CIS) For Appellant : Shri R.S. Patel, Advocate. For Respondent : Shri R.C.S. Deo, Panel Lawyer. Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board 08/09/2025 1. This criminal appeal preferred under Section 374 of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 27/01/2016 passed in Special Criminal Case H. 49/2015 by the learned Additional Sessions Judge Fast Track Court/ Special Court (POCSO) Act, Mahasamund (C.G.), whereby the appellant has been convicted and sentenced as under:- 2 CRA No.230 of 2016 Conviction Sentence U/s 363 of the IPC U/s 366 A of the IPC U/s 6 of the POCSO Act R.I. for 4 years with fine of Rs. 500/-, with default stipulation. R.I. for 4 years with fine of Rs. 500/-, with default stipulation. R.I. for 10 years with fine of Rs. 1,000/-, with default stipulation. All the sentences were directed to run concurrently. 2. The prosecution story, in brief, is that the victim PW-1 lodged a written report at Police Station Sankara that she had been acquainted with the appellant for about a year, who is a resident of the village. The appellant told her to elope with him to Bilaspur, promising to marry her and live cozily. On 19/06/2015, around 1:00 AM, the appellant called her and insisted to go with him. Despite her initial refusal due to fear of defamation, the appellant forced her and took her from the village to Bilaspur by taking a lift. The appellant kept her at the house of his acquaintance in Bilaspur and repeatedly raped her. After about two months, the appellant left her and returned home. The main allegation against the appellant is that he had lured her on the pretext of marriage, abducted her, and forcibly raped her. Based on above facts, present crime was registered against the appellant. During the investigation, spot map was prepared. Medical examination of victim was conducted. Statement of victim under Section 164 CrPC was recorded. Dakhil Kharij register was seized. After due investigation, the appellant was 3 CRA No.230 of 2016 arrested and thereafter, final report was prepared. 3. 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. 4. In order to bring home the offence, the prosecution has examined 11 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. 5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 27.01.2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 6.
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 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 11 CRA No.230 of 2016 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 accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 20. 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. 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 12 CRA No.230 of 2016 sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the 13 CRA No.230 of 2016 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 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." 21. 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 14 CRA No.230 of 2016 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 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: "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; 15 CRA No.230 of 2016 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 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 16 CRA No.230 of 2016 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." 22. 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 the POCSO Act is not made out. 23. 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 and the anatomical changes in the structure of the body continuously occur. Even on 1 AIR 1982 SC 1297 17 CRA No.230 of 2016 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.” 24. 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 18 CRA No.230 of 2016 offence 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 19 CRA No.230 of 2016 marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient 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 20 CRA No.230 of 2016 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. 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.” 25. Now the last question for consideration comes before this Court that whether the appellant has committed the heinous crime or not. 26. PW-1 Victim stated in her evidence that she had known the appellant for about a year before the incident. On the night of June 19, 2015, the appellant took her from her home in village Charbhatha to Bilaspur, promising to marry her. In Bilaspur, they stayed at the house of sister of the appellant situated near Nehru Chowk for about two months. During this time, the appellant committed sexual intercourse with her multiple times. Thereafter, she returned to her village with her relatives, including her brother and maternal uncle, after a social meeting was held in their village. In her cross-examination, she admitted that she had a love relationship with the appellant for about a year before the incident. The accused worked as a servant at a photo framing shop in Bilaspur and she used to work at a 21 CRA No.230 of 2016 Marwari's place in Bilaspur. She further stated that both of them eat together and her relationship was cordial with the appellant. 27. PW-10 Dr. Tara Agrawal, conducted the medical examination of the victim and has given the following report: “On external examination of the victim, it was found that the victim was physically and mentally healthy, there were no marks of injury on the external parts of the body, and her sexual characteristics were fully developed. On internal examination of the victim, it was found that the hymen was old and torn, two fingers could easily be inserted into the vagina, the uterus was of normal size, the cervix and vagina were healthy. Two slides were prepared from the vaginal discharge, sealed, and given to the concerned police officer with advice for chemical testing, and then the victim was sent back. 28. 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 victim herself stated that she had known to the appellant about a year ago from the date of incident. She categorically stated that she was in love relationship with the appellant and she herself gone with him to 22 CRA No.230 of 2016 Bilaspur. The victim along with the appellant stayed in the house of the sister of the appellant for about two months and they have made physical relation for many times. The victim had travelled to Bilaspur, but she had not raised voice for help. And, after reaching Bilaspur, both of them started doing work for livelihood and used to eat together after coming from work. From the medical examination report of the victim, there were no marks or injury on the body of the victim. It is to be noticed that during the whole incident, the victim has not made any complaint to anyone and has not raised any alarm for a long considerable period. Had she been forcefully raped her against her will or consent, she would definitely raised alarm or to make complaint to the anyone. Apart from that, there is no proof of exact date of birth of victim. Hence, the prosecution failed to prove the exact age of victim beyond reasonable doubt. 29. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has committed rape upon her, rather it reflects from the evidence that the victim herself had made consented sexual intercourse with the appellant. It is also clear from the statements of the prosecution witnesses that the physical relation they made was consensual in nature, thus, it cannot be said that the appellant committed the offence. 30. The law is well settled that in case of rape, conviction can be 23 CRA No.230 of 2016 maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of 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 leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 31. Applying the principle of law laid down by the Supreme Court to the facts of the present case and considering the overall evidence available on record, the impugned judgment dated 27/01/2016 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. 32. 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/- Amardeep
Arguments
Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that 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. Most of the prosecution witnesses have turned hostile and not supported the case of the prosecution. Learned counsel would submit that 4 CRA No.230 of 2016 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. 7. 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. 8. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 9. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for the offences under Sections 363 & 366 A of the IPC. 10. The appellant has been convicted for offence of kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- 5 CRA No.230 of 2016 “361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” 11. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian. 12. Reverting to the facts of the present case in light of ingredients 6 CRA No.230 of 2016 of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC, it is evident from the statement of the victim (PW/1) recorded before the trial Court wherein she categorically stated that she knows the appellant about a year ago from the date of incident. She also admitted in her cross- examination that she was in a love relationship with the appellant. On the date of incident, the appellant told her to go with him, thereafter, she herself along with the appellant had gone from her house to Bilaspur by taking a lift. She further admitted that after reaching Bilaspur, she stayed with the appellant for about two months and both of them started doing work in Bilaspur. During the whole scenario, from the date of incident, she did not object to the appellant and not shouted or raised alarm for help during she travelled with the appellant to Bilaspur and when she was living with him in Bilaspur. 13. As such, there is no evidence on record that at any point of time, the appellant solicited or lured or induced or enticed the victim to go with him. On the other hand, it is clearly established that the victim herself accompanied the appellant and there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC. Similarly, there is no evidence of enticing the minor victim by the appellant. 7 CRA No.230 of 2016 As such, the trial Court is absolutely unjustified in convicting the appellant for the offences punishable under Sections 363 & 366 A of the IPC. 14. The next question for consideration would be, whether the victim was minor on the date of incident or not. 15. Salim Khan (PW-4), Assistant Teacher of the school has deposed that in the Dakhil Kharij Register Article A-1, at Serial No.2668, date of birth of victim has been mentioned as 13/10/1997. In cross-examination, she has admitted that the entries in the said register with regard to date of birth of the victim was not made by him. The entry regarding date of birth of the victim in the dakhil kharij register has been recorded by Banshilal, who was Principal in the year 2003 and she did not know on what basis, the entry of date of birth of victim was recorded. 16. PW-3, mother of victim stated in cross-examination that she has five children and her eldest son was born in the year 1985. She further stated that there is 2 to 3 years gap between the born of her children. She has not stated the exact date of birth of her daughter/victim. PW-2, sister of victim stated in her evidence that her sister/victim is aged about 18 years and she has no information about the exact date of birth of victim. 17. PW-1 Victim stated in her evidence that she is 18 years of age and her date of birth is 13/10/1997. 8 CRA No.230 of 2016 18. To ascertain the age of victim, Dakhil Kharij register was seized, but the person who made entry in the said register has not been examined by the prosecution in the present case. The evidence produced by the prosecution with respect to the age of the victim are not of that sterling quality which is sufficient to determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. Even from the evidence adduced by mother and sister of victim, it can be seen that on the date of alleged incident the victim is above 18 years of age. Apart from that, from the school register and as per victim also it is apparent that on the date of incident she is above 16 years of age. 19. 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 9 CRA No.230 of 2016 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 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 10 CRA No.230 of 2016 birth as mentioned therein could not be accepted."