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Judgment
Per: Justice Avanindra Kumar Singh
At the outset, learned counsel for the appellant prays for withdrawal of I.A.No.9703 of 2026, an application for suspension of sentence and grant of bail to the appellant. Accordingly, I.A.No.9703 of 2026 is dismissed as withdrawn.
2 . With the consent of learned counsel for the parties, matter is heard finally.
This appeal has been filed by the appellant/accused under Section 374(2) of Code of Criminal Procedure against the judgment dated 04/03/2021 passed in S.C. No.126/2016 by the First Additional Sessions Judge, Bijawar District Chhatarpur (MP), whereby the appellant has been convicted and sentenced as under :-
| Conviction u/s | Imprisonment | Fine amount | In lieu of |
| 363 of IPC | RI for 7 years | Rs.3000/- | Additional RI for 6 months |
| 366-A of IPC | RI for 10 years | Rs.5000/- | Additional RI for 1 year |
| 6 of POCSO Act RI for 20 years | Rs.10,000/- | Additional RI for 1 year |
4 . As per prosecution case, the charges against the accused was that on 29/08/2016 at about 11:00 PM in the night at village Angour under Police Station Gulganj, he kidnapped/lured the daughter of the complainant who was less than 18 years of age for sexual activity and committed rape with her by taking her to various place i.e. Chhatarpur, Jammu and Delhi etc.
5 . On the report of mother (PW-1) of the prosecutrix, FIR (Ex.P/2) was registered as Crime No.115/2016 and missing person report (Ex.P/1) No.02/2016 was also registered.
During investigation, on 08/12/2016 prosecutrix was recovered, Recovery Panchnama is Ex.P/8. Statement of the prosecutrix and her family members were recorded. Prosecutrix was medically examined. Medical Report is Ex.P/11. Her statement under Section 164 of Cr.P.C. was also recorded which is Ex.P/6. Seized material during the investigation was sent for FSL vide Ex.P14 and FSL report is Ex.P/15. After completion of investigation, chargesheet was filed.
The accused denied the charges. After prosecution evidence when examined under Section 313 of Cr.P.C. accused again stated that he is innocent and has been falsely implicated in the case.
Against the judgment of conviction, present appeal has been filed on the ground that age of the prosecutrix is not proved. The prosecutrix herself stated that she is not studying in Chhatarpur School. She further stated that she has given marksheet of Government Girls Higher Secondary School, Delhi but that document is not produced. As per the statement of prosecutrix (PW-3), it is a matter of consent. The MLC report of the prosecutrix does not support the prosecution case. As per the statement of the mother (PW-1 ) prosecutrix (PW-3) was of 18-19 years at the time of incident. Hence, prayer is made to allow the appeal and acquitted the appellant.
Shri Ajay Shukla, learned Government Advocate support the impugned judgment and prays for dismissal of the appeal.
Heard learned counsel for the parties and perused the record.
The mother of the prosecutrix (PW-1) has stated that her daughter is of 14 years. Since she is illiterate, she cannot state the date of birth of her daughter. Her daughter studying in Agnour and Delhi. In night her daughter went somewhere, she was not found at home. Her elder daughter told her that Santosh (accused) has taken the prosecutrix. She was searched but not found, therefore she gave a written complaint (Ex.P/1) in police station. During investigation, the prosecutrix was recovered. Her daughter was taken by the accused towards Haryana. The accused raped her daughter for about one month. Her daughter was medically examined. This witness has been declared hostile by the prosecution. The mother of the prosecutrix in para-6 stated that when police pressurized the family of the accused then accused brought her daughter (prosecutrix) back. She also admitted that accused has married her daughter in a temple in Jammu. In cross-examination by defence, in Para-9 she admitted that her daughter (prosecutrix) had told her that she out of her own volition had married the accused in a temple at Jammu. Her daughter in SDM Bijawar Court had stated that she wants to live with the accused and not with her father and mother. She further admitted that when prosecutrix went away from the house at that time she was 18-19 years of age. In Para-10 she further admitted that when daughter was recovered she did not want to get herself medically examined. She pressurized her for medical examination. In Para-13 she stated that her elder daughter is about 20-21 years of age and the prosecutrix is one year younger to her elder daughter.
Prosecutrix (PW-3) has stated that she does not know her date of birth. Accused was pressurizing her to elope with him and get marry but she refused. On 30/08/2016 accused kidnapped her and had taken her to Delhi but she had not married the accused. Thereafter from there the accused took her to Jammu and he was giving some dope to her which would make her lose consciousness and raped her multiple times for about three months. She has given statement under Section 164 of Cr.P.C, in Court. With her consent she was medically examined. This witness has declared hostile by the prosecution.
In cross-examination the prosecutrix in Para-5 stated that while going from Chhatarpur to Delhi she did not inform anyone that she was being kidnapped. In Delhi they used to live in rented house and accused used to do labourer work. She used to go out of the house also. In Para-6 she stated that her statement under Section 164 of Cr.P.C. was given out of fear of accused but now she is not afraid of accused. In Para-8 she stated that while living with accused she never told other persons that she was kidnapped.
Elder sister of the prosecutrix (PW-5) has stated that her sister had gone with the accused in night. A report was lodged in this regard. In cross-examination, she denied that no offence was committed against her sister.
Father of the prosecutrix (PW-6) has stated that accused had kidnapped her daughter (prosecutrix). When his elder daughter on the next day went to the house of the accused to enquire about her sister (prosecutrix) then she (PW-5) was beaten by family members of accused, therefore she sustained a fracture in index finger of her right hand. He further stated that when police recovered the prosecutrix, she has stated that accused has raped her. In cross-examination, in Para-2 he has stated that he has four children; two daughter and two sons, eldest is son who is 19 years of age. There is a difference of two years in other children. The prosecutrix is fourth child. He was married about 20 years ago.
Dr. Nidhi Khare (PW-09) has stated that she had medically examined the prosecutrix. Her breast were well developed. There was no injury of any part of her body. There was no injury on internal parts. The Hymen was old torn. Vaginal swab slides were prepared.
1 7 . Aadhar Singh, Head Constable (PW-10) in para-10 of his cross-examination has admitted that prosecutrix has given her statement that she had gone away with accused to Jammu on her own volition.
1 8 . Ms. Savita Bajpai, Assistant Teacher (PW-12) has stated that on 05/09/2016 she was posted at Government Primary School Angour, District Chhatarpur. At the time of admission i.e. on 05/09/2016, the date of birth of the prosecutrix is mentioned as 12/04/2001 in the Scholar Register. Concerned certificate issued by the then Mahesh Chandra Tiwari, Head Master is Ex.P/12 on which 'A to A' part, there are the signature of Shri Mahesh Chandra Tiwari, whose signature she is well acquainted due to working with him, copy of Scholar Register is Ex.P/13. In cross-examination she admitted that she has not brought the admission form, she further admitted that she has not brought any other documents if available in school regarding birth certificate of the prosecutrix.
Sub-Inspector Mr. Anand Singh Parihar (PW-13) has stated that FSL report in this case was received from Gwalior which is Ex.P/15.
Learned trial Court in its judgment dated 04/03/2021 in Para-16 has held that at the time of incident the prosecutrix was aged about 15 years 4 months but in this case there is no birth certificate even admission form has not been produced by Savita Bajpai, Assistant Teacher (PW-12). Then it becomes a pertinent question as to on what basis, the date of birth of the prosecutrix was recorded in school.
2 1 . The mother of the prosecutrix (PW-1) in Para-9 of her cross-examination has admitted that prosecutrix had told her that she went with the accused on her own volition and when the prosecutrix eloped from home, her age about 18 -19 years.
In the case of Jitendra Jatav Vs. State of M.P. [Criminal Appeal No.11320/2022 decided on 13.1.2023] in a case involving offences under sections 363, 366 of IPC and section 3/4, r(j)(II) r/w 6 of the POCSO Act on a appeal by the accused the Division Bench of this Court in paragraphs 2 6 & 27 has referred to the decision in the case of Vishnu Vs. State of Maharashtra, (2006) 1 SCC 283 and observed as under:-
"26.In Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :
(2006) 1 SCC (Cri) 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded.
27.Thus, the entry in respect of age of the child seeking admission, made in the school register by semi-literate chowkidar at the instance of a person who came along with the child having no personal knowledge of the correct date of birth, cannot be relied upon.”
In P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, in a case under section 366 IPC and section 6 of the POCSO Act Hon’ble Supreme Court in paragraph 17 has referred to judgment of three-judge Bench of Hon’ble Supreme Court in the case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal , (2012) 9 SCR 224, in which it was held that burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it.
In the appeal at hand before this Court, it is the prosecution on behalf of the prosecutrix who is claiming that prosecutrix was less than 18 years at the time of incident.
In Birka Shiva Vs. State of Telangana [Criminal Appeal arising out of SLP (Crl.) 1445/2025] in a case under sections 376, 366, 342 of IPC in paragraph 8.1 Hon’ble Supreme Court referred to Birad Mal Singhvi Vs. Anand Purohit, 1988 Supp SCC 604, relevant paragraphs 14 & 15 are reproduced below:-
“14.… If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. … 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. The entry contained in the admission form or the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. …
15.Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is (2003) 8 SCC 745 1988 Supp SCC 604 relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. … The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined…"
In paragraph 8.5 of same judgment Hon’ble Supreme Court referred to the judgment of Alamelu Vs. State (2011) 2 SCC 385 , para- 40:-
“40………..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.”
In the same judgment of Birka Shiva (supra) Hon’ble Supreme Court in paragraph 12 has observed thus:-
“12.Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the present facts and circumstances, the proof submitted by the prosecution in the form of Ex.P11 (birth certificate issued by the school) was not sufficient to arrive at a finding that the prosecutrix was less than sixteen/eighteen years of age, especially when such a document was not sufficiently corroborated. Therefore, it was neither safe nor fair to convict the appellant based on it, particularly in the context where the age of the victim was such a pivotal factor.”
Therefore, for want of clinching evidence regarding age, we find that prosecution has failed to prove that on the date of offence i.e. on 29/08/2016 the prosecutrix was less than 18 years of age.
Regarding the offence of rape, Dr. Nidhi Khare (PW-9) has stated that hymen was old torn and she could not give definite opinion about the recent intercourse. Even in her statement under Section 164 of Cr.P.C. (Ex.P/6), the prosecutrix herself stated that she went away with accused on her own volition and had married the accused. Although in her court's statement, the prosecutrix (PW-3) has stated that earlier she was in fear of the accused therefore she had given statement in favour of the accused but legally we cannot accept this preposition of law then even in Court before the Judicial Magistrate, anyone including the prosecutrix can be held to be under fear. The Court is a neutral place and if a person gives contradictory statement then it becomes highly doubtful as to what is her correct version of story regarding incident. Even mother of the prosecutrix (PW-1) in cross-examination has stated that prosecutrix had told her that she was married the accused on her own volition after going away with him.
In view of the aforesaid, we are of the opinion that the judgment of the trial Court cannot be sustained as the prosecution has failed to prove that the prosecutrix was minor at the time of incident, therefore if any physical relation developed between them, then it is a consensual relationship between two adults which is not a crime.
2 6 . Accordingly, the appeal is allowed. The impugned judgment dated 04/03/2021 is set aside.
If the appellant is not required in any other case, he shall be released forthwith. Record of the trial Court be sent back.