Ramkrishna @ Budhan S/o Chamu Ram Aged About 60 Years R/o Village Thethenagar, P.S v. State Of Chhattisgarh Through Police Station Baikunthpur, District Korea, Chhattisgarh
Case Details
1 MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.09.04 10:50:32 +0530 2025:CGHC:44594-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1807 of 2024 Ramkrishna @ Budhan S/o Chamu Ram Aged About 60 Years R/o Village Thethenagar, P.S. Barangjor, District Jashpur, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through Police Station Baikunthpur, District Korea, Chhattisgarh. ...Respondent(s) For Appellant(s) : Mr. Vineet Kumar Pandey, Advocate For : Mr. Swajeet Ubeja, Panel Lawyer Respondent(s) Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Bibhu Datta Guru , Judge Per Ramesh Sinha, Chief Justice Judgment on Board 02.09.2025 1. The criminal appeal arises out of the judgment of conviction and order of sentence dated 12.09.2024 passed 2 by the learned Special Judge Kunkuri (Under Protection of Children from Sexual Offences Act 2012) Kunkuri, District- Jashpur (C.G.) in Special ST POCSO/27/2022 whereby, the appellant has been convicted for offences punishable as under:- Conviction Sentence Fine In default of under Section (Rigorous imprisonmen t) payment of fine add. Simple imprisonmen t Section 06 of 20 years Rs.1,000/ 01 year POCSO Act. - Section 3(2)(v) of Life Rs.1,000/ 01 year SC/ST Act. imprisonmen - All sentences have been directed to run concurrently. t 2. Learned State counsel submits that notice has already been served to PW-1 i.e. mother of the victim, but none appeared on her behalf to contest the present appeal. 3. The prosecution story, in brief, is that the victim is the daughter of complainant (PW-01). She had studied up to Class VIII, but owing to her weak mental condition, she discontinued her studies and used to remain at home. In the year 2019, the accused Ramakrishna @ Budhan, who was working as Head Teacher in the Government Primary 3 School, Village Thethetangar, approached the complainant and suggested that since he had no one to assist him in household chores like cleaning cow dung, sweeping and mopping the floor, the victim may be sent to his house for such work. He assured that he would pay Rs.3,000/- annually and also provide clothes for the victim. Believing his words, the complainant and her husband agreed, and thereafter the victim started going to the house of the accused every day at about 6:00 a.m. and returning home after about two hours. 4. It is alleged that for about two years the victim continued to work in the house of the accused. However, in the month of March 2022, the accused called the victim inside his room, latched the door from inside and forcibly committed sexual intercourse with her against her will. He thereafter threatened the victim not to disclose the incident to anyone, otherwise she and her family would face dire consequences. The prosecution further alleges that after the said incident, whenever the victim went to the house of the accused, he repeatedly subjected her to sexual intercourse, taking undue advantage of her vulnerability and mental condition. Out of fear, the victim did not narrate the incident to anyone. 5. In the month of June 2022, when the complainant noticed 4 certain changes in the physical condition of her daughter, she confronted her, upon which the victim narrated the entire incident of sexual exploitation committed by the accused. On learning this, the complainant immediately informed her husband and thereafter lodged a written report (Ex.P-01) at Police Station Kunkuri on 10.07.2022.
Facts
Based on the said report, FIR (Ex.P-15) was registered against the accused for the offences punishable under Sections 376(2)(n), 506 IPC, Sections 5(l), (t), (j-j) read with Section 6 of the POCSO Act, 2012, and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. 6. During investigation, the victim was medically examined and her statement under Section 164 Cr.P.C. was recorded before the Magistrate, wherein she reiterated the allegations of repeated rape by the accused. The caste certificate of the victim (Article A-01) was seized which confirmed that she belongs to the “Khadia” community, a notified Scheduled Tribe. The school admission register (Ex.P-13) was also collected, which proved her date of birth as 10.05.2005, thereby establishing her minority on the date of incident. Thereafter, accused was arrested. The spot map (Ex. P-04) was prepared. Relevant articles were seized and sent for FSL examination. The medical officer (PW-04) 5 opined that signs were consistent with repeated sexual intercourse. The DNA test, though excluding the accused as the biological father of the child, did not contradict the allegations of continuous sexual assault. 7. After completion of investigation, charge-sheet was filed before the Court of the Special Judge (POCSO/SC-ST Act), on the basis of which charges were framed against the accused. 8. After the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure and when he was admitted in the defence, he expressed his innocence and that he had been falsely implicated but did not give any evidence in his defence. 9. After appreciation of evidence available on record, the learned trail Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.
Legal Reasoning
16 to 18 years of age is to be accepted, in our view, the 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 12 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 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 13 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. 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.” 20. The next question for consideration before this Court is whether the victim was a mentally challenged person? 21. In this regard, the learned trial Court observed that the prosecution had not produced any expert opinion or documentary evidence to show that the victim was mentally retarded or incapable of understanding and answering questions. On the contrary, the trial Court, upon considering the entire testimony of the witnesses, found 14 that there was nothing on record to suggest that the victim was unable to comprehend facts or narrate them when explained. The Court further noted that the victim was merely a less educated child from a rural background, and that her evidence, when viewed in the context of all the surrounding facts and circumstances, appeared to be reliable. Therefore, the allegation that the victim was mentally retarded and incapable of understanding the gravity of the case is not proved, and we hereby affirm this finding of the trial Court. 22. The next question for consideration before this Court is whether, on the said date, time and place, the accused, knowing the victim to be a Scheduled Tribe, raped her by establishing physical relations with her against her will? 23. In this regard, the victim (PW-1) has stated in her deposition that she was acquainted with the accused Ramakrishna, a resident of Thethetangar, and that at the relevant time she used to visit his house for household work. According to her version, during such visits the accused subjected her to wrongful acts against her will, and as a result she conceived and subsequently delivered a female child. She further deposed that when her mother noticed changes in her health, she was taken to a medical centre where it was confirmed that she was pregnant, and 15 thereafter her mother lodged a report at the police station. She has identified her signatures on the spot map (Ex. P- 07), the consent form (Ex. P-08), and has admitted her signatures on her statement recorded under Section 164 of the Cr.P.C. before the Judicial Magistrate, Bagicha (Ex. P- 09). On being questioned further under Section 154 of the Evidence Act, she reiterated that the accused had acted forcibly on more than one occasion, that she had been threatened not to disclose the incident, and that out of fear she did not initially inform anyone. She admitted that she ultimately disclosed the matter to her mother only after being medically examined. However, in her cross- examination by the defence, PW-1 admitted that she does not know her exact date of birth or the year of her parents’ marriage. She stated that she studied up to class VIII where both boys and girls were taught together, and she used to converse with the boys of her school. She admitted that she used to attend fairs and picnics along with boys and that in her village also she had friendly relations with boys. She admitted that during the period when she was working at the accused’s house, construction work of a water tank was going on nearby and labourers were staying in an adjacent community hall. She further admitted that houses of other villagers of her own caste were situated 16 next to the house of the accused. Importantly, she admitted that she could not specify the date, month, or year of the alleged incident. She also admitted that she is literate, that she generally followed whatever her parents told her, and that the age she mentioned in court was only an estimate and could in fact be more. She further admitted that when her health condition became noticeable, her parents questioned her, and out of fear of being beaten she named the accused. She also stated that she had not immediately informed her parents or anyone else about the alleged incident and continued her daily routine as usual thereafter. 24. From the above evidence, it is seen that while PW-1 in her examination-in-chief attributed serious allegations to the accused, her cross-examination brings out significant inconsistencies and admissions. She has been unable to specify any date or time of the alleged occurrence, has acknowledged that she is narrating the incident as per what her parents instructed her, and has admitted that she named the accused only when confronted by her parents regarding her pregnancy. These contradictions, coupled with the admitted presence of labourers and neighbouring villagers near the accused’s house, create serious doubt as 17 to the reliability of her testimony in the absence of strong corroboration. 25. Now coming to the statement of mother of the victim (PW- 2), she has deposed that her daughter used to go to the house of accused Ramakrishna for cleaning work. She has stated that she noticed a change in the physical appearance of her daughter, particularly her enlarged stomach, upon which she questioned her. Initially, the victim did not disclose anything. PW-2 further stated that on suspicion she took her daughter to the Primary Health Centre, Kunjara, where the nurse informed her that the victim was pregnant. Thereafter, upon persistent questioning, the victim disclosed that the accused Ramakrishna had committed wrongful acts upon her, leading to the pregnancy. PW-2 then took her daughter to Police Station Kunkuri and lodged the report, on the basis of which the case was registered. 26. In her cross-examination, PW-2 admitted that she herself had not seen the alleged incident. She further admitted that initially her daughter had not disclosed the name of the accused. She conceded that there were other families residing near the house of the accused, including those belonging to their own caste. She also admitted that the accused’s son and daughter-in-law occasionally resided in 18 the same house. She denied the suggestion that there was any village enmity with the accused or that her daughter was prompted to falsely implicate him. 27. On evaluation of the testimony of PW-2, it emerges that her evidence is essentially calculative in nature, based on what was later disclosed by the victim and not on her own direct observation. While her conduct in noticing her daughter’s condition and taking her for medical examination appears natural, the delay in disclosure of the name of the accused until after confirmation of pregnancy introduces an element of doubt. Her testimony, therefore, does not independently establish the allegation but only provides a supporting link, which by itself is insufficient in absence of corroboration. 28. Father of the victim (PW-03), stated in his examination-in- chief that his daughter used to go to the house of accused Ramkrishna Yadav to sweep since three years and his daughter used to stay at home. When the victim's father took his daughter to Sub Health Center Kunjara for a checkup, it was found that his daughter (victim) was three months pregnant. When they questioned the victim, she told that it happened due to the wrongdoings of accused Ramkrishna. Apart from this, she said that he does not have any information. 29. Now coming to the medical and DNA evidence adduced, 19 Dr. S. Dehuri (PW-04), the medical officer posted at Community Health Center, Kunkuri, deposed that on 11.07.2022, he conducted a thorough genital and general examination of the victim following a written request from the police. During the examination, the victim was found to be fully conscious, alert, and physically developed in accordance with her age. His examination revealed that there were no external injuries, bruises, scratches, or any marks of recent trauma on any part of her body. On examining the hymen, Dr. Dehuri observed old healed tears, which, while indicative of prior sexual activity, provided no evidence of recent forcible sexual assault. A urine pregnancy test was conducted, which confirmed that the victim was pregnant, with a gestational age estimated between 24 and 26 weeks. The doctor advised abdominal sonography to confirm the precise gestational age and assess fetal development. While the medical examination confirmed the pregnancy, it failed to corroborate the prosecution’s claim of repeated sexual assault. The absence of injury or trauma at the time of examination is a critical factor, as in cases of repeated sexual assault on a minor, certain physical signs would ordinarily be expected. The findings of Dr. Dehuri, 20 therefore, raise serious doubts about the reliability of the prosecution’s narrative and suggest that the alleged acts, as claimed, may not have occurred in the manner described. 30. Dr. Manju Minj (PW-08), medical officer at District Hospital Jashpur, conducted a detailed sonographic examination of the victim on 13.07.2022. The examination revealed the presence of a live fetus in the womb, with a gestational age of approximately 21 weeks and 5 days, a fetal weight of 500 grams, a heart rate of 95 beats per minute, and normal amniotic fluid levels, indicating healthy fetal development. The sonography also confirmed that the fetus was active and developing appropriately within the womb. Importantly, however, the sonographic examination cannot determine the identity of the biological father. Therefore, while Dr. Minj’s findings corroborate the fact of pregnancy, they provide no link to the appellant and cannot substantiate the prosecution’s allegations. This testimony, considered alongside other medical and forensic evidence, serves to create reasonable doubt regarding the appellant’s involvement in the conception. 31. Dr. S. Toppo (PW-09), medical officer at the Community Health Center, Kunkuri, examined the appellant to determine his physical and sexual capability. Dr. Toppo 21 found the appellant to be physically and mentally healthy, with fully developed secondary sexual characteristics, normal genitalia, and no injuries or abnormalities. While this confirms that the appellant was capable of sexual activity, it does not establish that any sexual act occurred between him and the victim. Physical capability alone, without corroborating evidence, cannot be construed as proof of criminal conduct. Therefore, Dr. Toppo’s findings, though confirming potential capacity, do not support the prosecution’s allegations. 32. The prosecution also relied on DNA evidence obtained from the victim, the child born, and the appellant, analyzed by the State Forensic Science Laboratory, Raipur. The DNA report (Exhibit C-1) conclusively established that the child born to the victim is not biologically related to the appellant. This evidence is scientifically verifiable and of paramount significance. The DNA report clearly shows that the child born to the victim is not the biological child of the appellant, which directly contradicts the prosecution’s claim that he was the father. Looking at this together with the medical report, which shows no recent injuries or signs of sexual assault and only old healed hymenal tears, it is clear that there is 22 no direct or supporting evidence linking the appellant to the alleged crime. Because of this, serious doubt arises about the truth of the victim’s allegations, and the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. Legal principles and judicial precedents, including the observations in Bhupinder Singh v. State of Punjab (1988) 3 SCC 513, recognize that scientific evidence of this nature can outweigh oral testimonies, particularly when witnesses are hostile, inconsistent, or reliant on hearsay. 33. This scientific evidence is critical because it directly contradicts the victim’s claim that the appellant fathered the child. The Hon’ble Supreme Court has repeatedly held that DNA evidence is highly reliable and can decisively determine parentage or exclude suspects (State of Punjab vs. Ram Singh, (2011) 7 SCC 1; Ramesh vs. State of Haryana, (2019) 6 SCC 375). In the present case, the DNA results serve as a definitive justificatory evidence for the appellant. 34. Furthermore, in cases of alleged sexual assault, where the victim is a minor, the Supreme Court has emphasized that medical and forensic evidence must corroborate the allegations to sustain a conviction (Lalita Kumari v. Govt. of UP, (2013) 2 SCC 1). In this matter, both medical 23 evidence and DNA evidence fail to link the appellant to the crime, and the hymenal injuries noted were old and healed, showing no signs of recent assault. 35. Taken together, the medical and DNA evidence raises substantial doubt about the prosecution’s case and militates strongly in favor of the appellant. The pregnancy of the victim, while medically verified, cannot be attributed to the appellant, and no physical or forensic evidence corroborates the alleged acts. Consequently, the appellant is entitled to the benefit of doubt and acquittal. 36. So far as conviction of appellant under Section 3(2)(V) of the SC/ST Prevention of Atrocities Act, 1989 is concerned, the record shows that the victim belongs to a Scheduled Caste/Tribe community, specifically the Khadia tribe, as reflected in her permanent social status certificate. The investigating officer (PW-12), deposed that on 15.07.2022, the victim presented her caste certificate to the police, which was duly seized in the presence of witnesses and recorded in the seizure memo (Ex.P-04). The seizure was signed by the officer and other witnesses, including the victim’s mother, whose signature appears on the memo, and the certificate itself was marked as Article A-1. The procedural correctness of this seizure is therefore duly established and undisputed. 37. The victim’s mother (PW-01) further stated that the 24 appellant was aware that her daughter was a minor and belonged to the Khadia tribal community. The victim herself, in her statement, confirmed her tribal status, and the father (PW-03) also affirmed that the family belongs to the Khadia community, listed under the Scheduled Tribes of Chhattisgarh as per Article 42 of the Constitution. While the prosecution emphasized this fact to suggest knowledge of the victim’s status by the appellant, it is important to note that the mere fact of the victim belonging to a Scheduled Tribe does not, in itself, establish the commission of any offence. No independent evidence confirms that the appellant had any intent to exploit her based on her caste or tribal identity. 38. A perusal of Caste certificate of the victim (Article A-01) confirms that the victim is listed at serial No. 22 in the official list of Khadia caste-tribe communities recognized under the Scheduled Castes and Scheduled Tribes category in Chhattisgarh. This procedural fact is fully reliable and uncontested. However, while her social status is correctly established, the evidence does not substantiate the core allegation of sexual assault. The medical findings and DNA analysis, which show no injury or signs of recent assault and exclude the appellant as the biological father of the 25 child, remain proved. Therefore, although the victim’s Scheduled Tribe status is properly recorded and undisputed, it cannot, in any way, compensate for the absence of direct or corroborative evidence against the appellant. In light of these findings, the appellant cannot be held criminally liable merely on the basis of the victim’s social status. 39. 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 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 reasonable doubt, which the prosecution has failed to do in the instant case. 40. The Hon’ble Supreme Court recently in the matter of Dhananjay Mahapatra v. State of Uttar Pradesh (2024), acquitted the accused who had been sentenced to death for the rape and murder of a Dalit girl in 2009 observing that there was no evidence to even raise minimal suspicion against the accused and criticized both investigative agencies and the judiciary for their 26 overzealous approach in attempting to resolve a sensational case. Also, in the matter of Bhupatbhai Bachubhai Chavda v. State of Gujarat (2024 INSC 295), the Supreme Court emphasized that in appeals against acquittal, the burden of proof lies on the appellant to demonstrate that the acquittal was erroneous. The Court highlighted that mere suspicion or conjecture is insufficient to overturn an acquittal. 41. After a careful and comprehensive examination of the entire evidence on record, including the statements of the victim (PW-02) as recorded in her judicial statement under Section 164 Cr.P.C. (Ex.P-09), the testimonies of her parents (PW- 01 and PW-03), the medical reports of Dr. S. Dehuri (PW- 04, Exhibit P-10 & P-11) and Dr. Manju Minj (PW-08, Exhibit P-17), the examination of the appellant by Dr. S. Toppo (PW-09, Exhibit P-18 & P-19), and the procedural evidence regarding the seizure of the victim’s caste certificate (Exhibit P-04, Article A-1), it is manifest that the prosecution has failed to establish its case beyond reasonable doubt. The victim herself admitted that the allegations against the appellant were made at the suggestion of her parents, and her testimony contains significant inconsistencies and hostile portions that seriously undermine its credibility. The medical evidence 27 confirms no recent injuries or trauma and only old healed hymenal tears, while the DNA test report (Exhibit C-1) conclusively excludes the appellant as the biological father of the child. Although the victim’s Scheduled Tribe status is undisputed and properly recorded, it cannot, in itself, establish culpability. In the absence of any direct, credible, or corroborative evidence implicating the appellant in the alleged acts, he is entitled to the benefit of doubt. 42. In such circumstances, the Court finds it unbefitting to place implicit reliance on the sole testimony of the victim without independent corroboration. The prosecution has failed to prove its case beyond reasonable doubt, and the benefit of such doubt must necessarily go to the accused. 43. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment and conviction and order of sentence dated 12.09.2024 is set aside. The appellant stands acquitted from all the charges. 44. Keeping in view of the provisions of Section 437-A CrPC (now Section 481 of BNSS), the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing 28 of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 45. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Chief Justice Judge Manpreet
Arguments
10. Learned counsel for the appellant argued that the judgment of conviction passed by the learned trial court is wholly arbitrary, illegal, perverse and against the settled principles of law inasmuch as the prosecution has miserably failed to prove that the victim was below 18 years of age at the time of the alleged incident. The learned trial Court has 6 erroneously relied upon the statements of the mother (P.W.1) and father (P.W.3) of the victim to hold that she was minor, whereas both these witnesses clearly admitted in their cross-examination that no documentary proof regarding her date of birth was ever submitted at the time of school admission and that the date of birth mentioned in the school register was only on presumption, which fact stood corroborated by the school teacher (P.W.6), who candidly admitted that at the time of admission, no such document was produced by the father of the victim. Despite these glaring infirmities, the trial Court wrongly recorded a finding the victim was minor at the time of the incident. Further, it is also evident from the testimony of P.W.1 and P.W.3 that the victim never disclosed any such incident to them and only after stoppage of menstruation did she allege that the appellant had physical relations with her, which itself creates grave suspicion about the veracity of the prosecution story. Further, except interested testimony of close relatives, no independent witness has supported the allegations, yet the learned trial Court by going beyond the evidence available on record has convicted the appellant. Moreover, P.W.1 herself admitted that the victim was of unsound mind, but no documentary evidence was ever produced to establish her mental condition, and 7 significantly, her statement was not recorded in the presence of a teacher trained to deal with handicapped or unsound persons, thereby vitiating the evidentiary value of such statement. The trial Court further failed to appreciate that no DNA test of the victim was ever directed despite it being essential for establishing the charge of sexual assault against the appellant. Further, the victim herself in her statement under Section 164 Cr.P.C. did not specify any date or time of the alleged incident and further admitted to consensual relations with the appellant, which establishes that the element of coercion, force or inducement is missing. In these circumstances, the essential ingredients of Section 375 IPC are not attracted, as the victim was a consenting party and her participation was voluntary, and there is no evidence to prove that her consent was obtained by fear, misconception of fact or undue influence. The Hon’ble Supreme Court in Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra, Criminal Appeal No. 1443 of 2018, has categorically held that consensual physical relations between parties cannot be construed as rape in the absence of evidence of coercion or deceit, yet the trial court, ignoring the settled law and misappreciating the facts and evidence, has wrongly convicted the 8 appellant, and therefore the impugned judgment and sentence deserve to be set aside. 11. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the victim was minor and below 18 years of age at the time of incident, which is proved by the School dakhil-kharij register (Ex.P-14C) which contains the date of birth of the victim as 10.05.2005. The dakhil-kharij register (Ex.P-14C) is admissible piece of evidence to determine the age of the victim. Therefore there is no illegality or infirmity in the findings of the learned trial Court. The prosecution has proved its case beyond reasonable doubt and the victim (PW-2) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC (Ex.P-9) and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 12. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 9 13. The first issue that arises for consideration in the present appeal is whether the age of the victim on the date of commission of the offence concerned, was below 18 years? 14. In order to consider the age of the victim, statements of mother the victim (PW-1), statement of victim (PW-2) and statement of the Principal, Irfan Alam (PW-06) is taken on record. 15. The mother of the victim (PW-1), in her main examination has stated that the present age of the victim on evidence dated 26.12.2022 is 17 years. The victim (PW-2), in her main examination has stated that her present age on evidence dated 09.02.2023 is 16 years. Similarly, the father of the victim (PW-3), has stated that the age of the victim on evidence dated 05.04.2023 is 17 years. 16. Regarding the age of the victim, the Head Master Irfan Alam (PW-06) has confirmed the seizure of the Dakhil Kharij Register regarding the date of birth of the victim as per Exhibit P-13. He stated that in serial No. 163, the name of the victim and her date of birth 10.05.2005 were mentioned. 17. This witness in his cross-examination has voluntarily admitted that in the Dakhil Kharij Register (Ex.P-14), the name, address and signature of the parents or any other 10 relative who got the victim admitted is not there and the date of birth of the victim i.e. 10.05.2005, has been taken on what basis has also not been mentioned. Further, mother of the victim (PW-1) has also admitted in her cross- examination that dated of birth of the victim in the school is an estimate and no document or birth certificate was given the School at the time of writing the date of birth of the victim in Dakhil Kharij Register. 18. Accordingly, in view of the contradictory oral statements of P.W.1, P.W.2, and P.W.3 regarding the age of the victim, coupled with the statement of P.W.6 that the school register does not disclose the basis of recording the date of birth and the categorical admission of P.W.1 that the same was merely an estimate without supporting documents, it is evident that the prosecution has failed to prove the date of birth of the victim, and consequently, the age of the victim at the relevant time remains unproved. 19. Per contra even if the date of victim at the time of incident is said to be approx 17 years at the time of the incident, as has been held by the trial Court, the Hon’ble Supreme Court recently in the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, has held that he victim, who is between 16 to 18 years of age is very much in the age of understanding as to what 11 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