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CGHC010404972022 2026:CGHC:45419-DB

AFR

Reserved on : 06.10.2026

Delivered on : 28.10.2026

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 1945 of 2022

1 - Rajesh Hemla S/o Sukku Hemla Aged About 26 Years R/o

Chinnakodepal Nayapara, Police Station Modakpal, District Bijapur

Chhattisgarh

... Appellant(s)

versus

1 - State Of Chhattisgarh Through - Police Station - Modakpal District

Bijapur Chhattisgarh

... Respondent(s)

For Appellant: Mr. Parth Kumar Jha and Mr. Palaash Jha,

Advocates

For State : Mr. Saumya Rai, Dy. Govt. Advocate

Hon'ble Shri Justice Narendra Kumar Vyas , Judge and

Hon'ble Shri Sudhir Kumar , Judge

C.A.V. JUDGMENT

Per Narendra Kumar Vyas,J.

1.The appellant by way of this appeal has challenged the judgment

dated 01.12.2022 passed by the Additional Sessions Judge

(FTC) South Bastar Dantewada (CG) in Special Sessions

(POCSO) Case No. 17/2021 whereby and whereunder, he has

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convicted and sentenced the appellant as under :-

Conviction u/S.Sentence RI.Fine In default of

payment of fine

6 of the Protection

of Children from

Sexual Offences

Act read with

Section 376(3) of

IPC

20 Years Rs.1000/-Additional RI

for one year

2.In brief, the prosecution story is that the victim filed written

complaint (Ex.P/1) at Police Station – Modakpal, District –

Bijapur (C.G.) on 01.02.2021 alleging that after Holi, in the month

of March, on 24.03.2020 her mother and father had gone out for

some work and she was sitting outside the home of her maternal

aunt, at about 7:00–8:00 p.m., accused who is related to her as

maternal uncle, came to her. He took her forcefully to a nearby

secluded place in forest, tore her clothes, and forcibly committed

rape upon her. He also told her that he would marry her and

thereafter left. She returned home, but out of fear, she did not

disclose the incident to anyone. Two or three days later, the

accused again came to the house when the other family

members were asleep. He started harassing her and pulling her

clothes, however, somehow she succeeded to escape.

Subsequently, on several occasions, he forcibly established

physical relations with her against her will from 24.03.2020 to

01.02.2021 due to which she became pregnant. On the basis of

the said report, the police registered a named First Information

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Report (FIR) (Ex.P/02) against the accused for offences

punishable under Sections 376 of the Indian Penal Code and

Sections 4 & 6 of the he Protection of Children from Sexual

Offences Act, 2012 (POCSO Act).

3.The investigation was thereafter commenced. After usual

investigation, a charge-sheet was filed against the accused for

offences punishable under Sections 376(2)(n) of the Indian

Penal Code, as well as Sections 4 and 6 of the Protection of

Children from Sexual Offences Act, 2012 (POCSO Act) before

the Additional Sessions Judge (FTC). Learned trial Court framed

charges under Section 376(3), 376(2)(n), 506(ii) of the IPC and

Section 6 of the POCSO Act. After appreciating the facts and

materials available on record vide judgment dated 01.12.2022

acquitted the appellant of charges punishable under Sections

376(2)(n) and 506(ii) of the IPC and convicted him under Section

376(3) and Section 6 of the POCSO Act.

4.The appellant remained in jail during trial from 03.02.2021 to

17.08.2021. After conviction on 01.12.2022, he is in jail. As such,

he remained in jail for about 4 years and 5 months.

5.Learned counsel for the appellant would submit that the

prosecution has failed to establish the age of the victim. Although

the Dakhil Kharij Register was exhibited (Ex.P/15) before the

learned trial Court, the person at whose instance the entry

regarding the date of birth of the victim was recorded has not

been examined, nor the foundational record supporting such

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entry has been produced. It is contended that, in absence of

proper proof and corroboration of the entry by the underlying

record, the same can not be relied upon to conclusively establish

the age of the victim. Learned counsel would further submit that

the victim herself has admitted that she was born in the year

2001, whereas the alleged incident pertains to the year 2020.

The father of the victim has stated that she was aged about 18–

19 years, while her mother expressed her inability to recollect

her age. Thus, the evidence adduced by the prosecution does

not establish conclusively that the victim was a minor at the time

of the alleged incident. Still, the learned trial Court has

erroneously convicted the appellant by invoking the provisions of

the POCSO Act.

6.Learned counsel would further submit that the medical evidence

does not lend support to the prosecution's case. It is further

submitted that, despite having found the relationship between

the appellant and the victim to be consensual, the learned trial

Court has erroneously convicted the appellant without properly

appreciating the evidence relating to the victim's age. Thus, the

impugned judgment of conviction suffers from perversity,

illegality and improper appreciation of the evidence on record,

therefore, he prays that the impugned judgment of conviction be

set aside and the appellant be acquitted of the charges levelled

against him. To substantiate his submission he has relied upon

judgment of the Hon’ble Supreme Court in case of Manak

Chand @ Mani vs The State Of Haryana {2024 (20) SCC 571}

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and judgment of Hon’ble High Court of Kernataka in case of

State of Karnataka vs. Sri. Nagesh {Crl. A. No. 100570 of

2022}.

7.The aforesaid submission has been vehemently objected by the

learned counsel for the State and he would submit that the

learned trial Court after appreciating the evidence and material

on record rightly convicted the appellant, which does not warrant

interference by this Court. He refuted the submission of the

learned counsel for the appellant and would submit that the

prosecution has proved the age of the victim. From perusal of

the Dakhil Kharij Register, it is quite vivid that the date of birth of

the victim is 07.05.2006, as such she was minor at the time of

incident. Learned State counsel would further submit that, once

the victim is established to be a minor within the meaning of the

POCSO Act, her consent, even if the relationship is alleged to be

consensual, is immaterial in law. It is further contended that the

medical evidence is not the sole determinant for establishing the

commission of the offence. Further, the DNA Report (Ex. P/26),

establishes that the accused the biological father of the child and

said evidence is undoubtedly significant for establishing the fact

of sexual assault. As such, even if the appellant succeeds in

proving the age of the victim to be major, even then the offence

under Section 376 of the IPC is made out against the appellant

and he would be convicted for commission of the offence under

Section 376 of the IPC on the basis of material brought on

record by the prosecution in absence of any formal charge

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framed by the trial Court and he would pray for dismissal of the

appeal.

8.We have heard learned counsel for the appellant and the State

and perused the record of the trial Court with utmost satisfaction.

9.From perusal of the record and submission of the learned

counsel for the parties, the principal questions that arise for

consideration in the present appeal are :-

1. Whether the prosecution has established beyond

reasonable doubt that the victim was a minor at the time of the

alleged incident as such his conviction under Section 6 of the

POCSO Act and Section 376(3) of the Indian Penal Code, are

sustainable?”

2. Alternatively, whether the accused can be convicted under

Section 376 of the IPC on the basis of evidence and material

on record?

Discussion and findings on Point No.1

10.The determination of the age of the victim assumes significance

in the facts of the case, as the applicability of the provisions of

the POCSO Act as well as conviction of the appellant under

Section 376(3) of depends upon proof that the victim was a child

within the meaning of Section 2(1)(d) of the POCSO Act at the

relevant time as well as whether the victim is below 16 years to

attract the conviction of the appellant under Section 376(3) of the

IPC.

11.Rule 12 of the Juvenile Justice (Care and Protection of Children)

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Rules, 2007 deals with the determination of age of a minor which

reads as under :-

12. Procedure to be followed in determination of age:-

(1)In every case concerning a child or a juvenile in

conflict with law, the Court or the Board, as the case

may be, the Committee referred to in rule 19 of these

rules shall determine the age of such juvenile or child or

a juvenile in conflict with law within a period of thirty

days from the date of making of the application for that

purpose.

(2)The Court or the Board or, as the case may be, the

Committee shall decide the juvenility or otherwise of the

juvenile or the child or, as the case may be, the juvenile

in conflict with law, prima facie on the basis of physical

appearances or documents, if available, and send him

to the observation home or in jail.

(3)In every case concerning a child or juvenile in conflict

with law, the age determination inquiry shall be

conducted by the Court or the Board or, as the case

may be, the Committee by seeking evidence by

obtaining-

(a)(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;

(b)and only in the absence of either (i), (ii) or (iii) of

clause (a) above, the medical opinion will be sought

from a duly constituted Medical Board, which will

declare the age of the juvenile or child. In case exact

assessment of the age cannot be done, the Court or the

Board or, as the case may be, the Committee, for the

reasons to be recorded by them, may, if considered

necessary, give benefit to the child or juvenile by

considering his/her age on lower side within the margin

of one year, and, while passing orders in such case

shall, after taking into consideration such evidence as

may be available, or the medical opinion, as the case

may be, record a finding in respect of his age and either

of the evidence specified in any of the clauses (a)(i), (ii),

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(iii) or in the absence whereof, clause (b) shall be the

conclusive proof of the age as regards such child or the

juvenile in conflict with law.

(4)If the age of a juvenile or child or the juvenile in

conflict with law is found to be below 18 years on the

date of offence, on the basis of any of the conclusive

proof specified in sub-rule (3), the Court or the Board or,

as the case may be, the Committee shall in writing pass

an order stating the age and declaring the status of

juvenility or otherwise, for the purpose of the Act and

these rules and a copy of the order shall be given to

such juvenile or the person concerned.

(5)Save and except where, further inquiry or otherwise

is required, inter alia, in terms of section 7-A, section 64

of the Act and these rules, no further inquiry shall be

conducted by the Court or the Board after examining

and obtaining the certificate or any other documentary

proof referred to in sub-rule (3) of this rule.

(6)The provisions contained in this rule shall also apply

to those disposed off cases, where the status of

juvenility has not been determined in accordance with

the provisions contained in sub-rule (3) and the Act,

requiring dispensation of the sentence under the Act for

passing appropriate order in the interest of the juvenile

in conflict with law.

12.Section 94 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 deals with presumption and determination of

age which reads as under :-

94. Presumption and determination of age-

(1)Where, it is obvious to the Committee or the Board,

based on the appearance of the person brought before it

under any of the provisions of this Act (other than for the

purpose of giving evidence) that the said person is a child,

the Committee or the Board shall record such observation

stating the age of the child as nearly as may be and

proceed with the inquiry under section 14 or section 36, as

the case may be, without waiting for further confirmation of

the age.

(2)In case, the Committee or the Board has reasonable

grounds for doubt regarding whether the person brought

before it is a child or not, the Committee or the Board, as

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the case may be, shall undertake the process of age

determination, by seeking evidence by obtaining -

(i)the date of birth certificate from the school, or the

matriculation or equivalent certificate from the concerned

examination Board, if available; and in the absence thereof;

(ii)the birth certificate given by a corporation or a municipal

authority or a panchayat;

(iii)and only in the absence of (i) and (ii) above, age shall

be determined by an ossification test or any other latest

medical age determination test conducted on the orders of

the Committee or the Board:Provided such age

determination test conducted on the order of the

Committee or the Board shall be completed within fifteen

days from the date of such order.

(3)The age recorded by the Committee or the Board to be

the age of person so brought before it shall, for the purpose

of this Act, be deemed to be the true age of that person.

13.The prosecution to prove the age of the Victim has examined

PW/6 the Head Master of the School who has exhibited the

Dakhil Kharij Register (Ex.P/15) wherein the date of birth of the

victim has been recorded as 07.05.2006 and who in cross has

admitted that neither he was posted at the time of admission of

the victim nor on what basis the date of birth has been recorded

is known to him. He has also admitted that he has not admitted

the victim in the school.

14.The Father of the victim (PW/3) has not supported the case of

the prosecution and denied that the appellant has committed

illegal act upon the victim but admitted that the victim has given

birth to a child and DNA was conducted. He has also admitted

that he has recorded the date of the birth of the victim on

guessing. Similarly, victim’s mother (PW/4) has not supported

the case of the prosecution and denied that the appellant has

committed forceful act upon the victim by which she became

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pregnant and now he is refusing to marry her daughter. She has

also denied her statement (Ex.P/13) recorded before the Police.

15.The victim (PW/02) in her examination-in-chief has stated that

she was born in year 2001 and has not supported the case of

the prosecution, as such she turned hostile therefore, the

prosecution was allowed to put leading questions to her. But,

again in paragraph 10 she has denied that on 24.03.2020 the

accused has forcefully taken her to the forest, where after

tearing her clothes, he committed rape on her and when she

asked for marriage, then he told that he will perform the marriage

subsequently and in the house itself after threatening her has

committed illegal act 3-4 times. She has denied about her

pregnancy also with the accused and also denied recording of

biological father of the deceased child as accused.

16.From the appreciation of these evidences it is quite vivid that the

prosecution has not adduced cogent evidence to prove the age

of victim as the author of the document was not examined before

the trial Court nor any document which is required to prove the

age has been produced by the prosecution. Thus, the finding of

the learned trial Court at paragraph 19, 22 and 23 that the date

of birth of the victim is 07.05.2006 relying upon the Dakhil Kharij

Register on the pretext that the said document was produced by

the prosecution from the custody of the government servant

which has been maintained by the school in due course of

business while running of the school and there is no evidence

brought on record by the accused regarding fabrication and

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manipulation in the records, as such the entry made in the

Dakhil Kharij Register is relevant for determination of age of the

victim as per Section 35 of the Evidence Act are perverse,

contrary to the evidence, material and against the law laid down

by the Hon’ble Supreme Court in case of Manak Chand @ Mani

vs The State Of Haryana {2024 (20) SCC 561} wherein the

Hon’ble Supreme Court has examined how date of birth has to

be proved and held as under:-

18. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp

SCC 604 had observed that the date of birth in the register of a

school would not have any evidentiary value without the

testimony of the person making the entry or the person who gave

the date of birth.

“14. …The date of birth mentioned in the scholar’s 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 in 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.”

19. In our opinion, the proof submitted by the prosecution with

regard to the age of the prosecutrix in the form of the school

register was not sufficient to arrive at a finding that the

prosecutrix was less than sixteen years of age, especially when

there were contradictory evidences before the Trial Court as to

the age of the prosecutrix. It was neither safe nor fair to convict

the accused, particularly when the age of the prosecutrix was

such a crucial factor in the case.

17.The further finding at paragraph 20 that as per Section 94 of the

Juvenile Justice Act, the Dakhil Kharij Register is primary

document to prove the age of the victim and there is no reason

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to disbelieve the same as well as the finding in paragraph 21

that the accused has failed to prove the age of the victim is

above 18 years is also erroneous finding in view of Section 34(1)

of the POCSO Act as Section 34(1) provides that where any

offence under this Act is committed by a child, such child be

dealt with under the provisions of the Juvenile Justice (Care and

Protection of Children) Act, 2015. The Section 94 of the JJ Act,

2015 which has already been extracted above by this Court,

provides presumption and determination of the age, thus evident

from conjoint reading of Section 34 POCSO Act and Section 94

of the JJ Act, 2015, it is clear that wherever the dispute with

respect to the age of the person arises in context of her or him,

being a victim, under the POCSO Act the courts have to take

recourse to the steps indicated in Section 94 of the JJ Act. This

view of this Court is fortified by the judgment of the Hon’ble

Supreme Court in case of Jarnail Singh vs. State of Haryana

{2013 (3) SCC 263} as well as its judgment in case of P.

Yuvaprakash v. State Rep. by Inspector of Police

{(2024) 17 SCC 684}.

18.From the said provision, it is crystal clear that the finding of the

learned trial Court victim was a child as per the POCSO Act is

erroneous finding and contrary to the law laid down by the

Hon’ble Supreme Court in its latest judgment in case of

Pynchemalangaki Bareh vs. State of Meghalaya {2026 SCC

Online SC 1821} wherein the Hon’ble Supreme Court has held

as under :-

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36. In the case at hand, the Investigating Officer did not

obtain the birth certificate from the school where the victim

had studied or the matriculation or equivalent certificate

from the examination Board concerned or birth certificate

given by a corporation, a municipal authority or a

panchayat, to prove that the victim was a minor on the date

of offence. The victim was also not sent for any age

determination test as provided under Rule 12 of the 2007

Rules or under Section 94(2)(iii) of the JJ Act which is in

pari materia with Rule 12 of the 2007 Rules. The said

provision prescribes that in the absence of the date of birth

certificate from the school or the matriculation or equivalent

certificate from the examination Board concerned, or birth

certificate given by a corporation, a municipal authority or a

panchayat, the age shall be determined by an ossification

test or any other latest medical age determination test

conducted on the orders of the Committee or the Board.

Admittedly, the victim was not subjected to any ossification

test or any other latest medical age determination test. The

only document available on the record for proving the age

of the victim is the Baptismal Certificate issued by the

Khasi Jaintia Presbyterian Assembly. Although the date of

birth in the Baptismal Certificate finds corroboration in the

deposition of P.W.-2, the mother of the victim girl, stating

the girl was born on 05.03.2006, yet since the document

itself is not the one prescribed under Section 94 of the JJ

Act, we are of the considered view that the prosecution has

failed to prove the age of the victim in the manner required

under Section 94 of the JJ Act.

19.Thus, the minority of the victim has not been established by the

prosecution as no statutory document as required has been

produced nor age determination by an ossification test or any

other latest medical age determination test has been conducted

by the prosecution to prove the age of the victim. Therefore, the

conviction of the appellant under Section 6 of the POCSO Act as

well as offence under Section 376(3) of the IPC deserves to be

set aside and accordingly it is set aside by granting benefit of

doubt. Consequently, the point for determination No. 1 is

answered in favour of the appellant.

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Discussion and findings on Point No. 2:-

20.The submission of the learned counsel for the State that even if

the offence under the POCSO Act has not been established still

the offence under Section 376 of the IPC is proved by the

prosecution beyond reasonable doubt, therefore, the appellant

can be convicted under Section 376 of the IPC is being

considered by this Court now.

21.The learned counsel for the appellant would submit that since no

charge has been framed against the appellant for commission of

offence under Section 376 of the IPC, therefore, conviction

cannot be altered by this Court. He would further submit that the

victim was consenting party and she has not supported the case

of the prosecution as such, he deserves to be acquitted from the

offence under Section 376 of the IPC also.

22. The submission by the learned counsel for the appellant that in

absence of charges framed under Section 376 of the IPC the

conviction cannot be ordered by this Court is misconceived, as

the Section 464 (1) of the Cr.P.C. clearly provides that effect of

omission to frame or absence of or error in charges, the finding,

sentence or order by a court of competent jurisdiction cannot be

held to be invalid. Further, the powers of the appellate Court are

not curtailed due to error by the trial Court in framing necessary

charges under Section 376 of the IPC as the power of the

appellate Court is wide enough in such cases to alter the finding

and nature and extent of sentence awarded by the trial Court.

Therefore, this Court can very well examine the issue whether

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the appellant can be convicted upon the evidence already

produced by the prosecution for commission of offence under

Section 376 of the IPC.

23.From the evidence of the victim, it is quite vivid that PW/2 victim

has not supported the case of the prosecution and denied that

the accused has taken her forcefully to the forest on 24.03.2020

where after tearing the clothes he has committed rape or he has

committed the same incident thrice-four times and also denied

that in the hospital he has recorded the name of father of the

deceased child as the appellant.

24.The victim was examined by the Doctor (PW/7) who in her

examination in chief has stated at paragraph 4 of the evidence

that there is no injury on the body or private part of the victim

regarding struggle or forceful commission of offence and even

there is no any medical evidence to indicate force or resistance

by the victim for conviction of the appellant under Section 376 of

the IPC. Further, the prosecution in this case has failed to offer

any reasonable explanation for delay in lodging the FIR though it

is well settled position of law that delay in lodging the FIR in

offence related to women is always not fatal but it is equally well

settled position of law that the delay in registration not only dilute

the inherent credibility of the prosecution story but also result in

loss of valuable forensic and medical evidence, which, if

collected promptly, could either substantiate or contradict the

allegation. The Hon’ble Supreme Court in case of Parkash

Chand vs. State of Himachal Pradesh {(2019) 5 SCC 628}

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has held as under :-

20. There is admittedly a delay of 7 months in lodging the

FIR in the case of alleged rape. If the case is reported

immediately apart from the inherent strength of the case

flowing from genuineness attributable to such promptitude,

the perceptible advantage would be the medical

examination to which the prosecutrix can be subjected and

the result of such examination in a case where there is a

resistance. It is the case of the prosecution that she raised

hue and cry and therefore apparently she would have

resisted. Possibly, a medical examination may have

revealed signs of any resistance or injuries. In this case

the High Court has proceeded on the basis of testimony of

the prosecutrix and sought to fortify it by the extra judicial

confession made before PW4 and PW5.

25.Further there is no dispute that the DNA Report Ex. P/26,

establishes that the accused was the biological father of the

child born to the victim. The said evidence is undoubtedly

significant as it establishes the fact of sexual intercourse

between the parties. However, from the evidence of the victim,

the Doctor (PW/7) and the DNA report by themselves do not

establish the circumstances whether the physical relationship

was forceful nor does it determine whether the relationship was

consensual. It is trite law that offence under Section 376 of the

IPC hinges in absence of consent. Mere proof of sexual

relationship even if resulting in pregnancy, is insufficient to prove

rape unless it is also shown that the act was non-consensual.

Considering the fact that the victim’s statement does not inspire

confidence or trustworthy or unblemished and of sterling quality,

it will not be safe for this Court to convict the appellant for

commission of offence under Section 376 of the IPC. The view of

this Court is fortified by judgment of the Hon’ble Supreme Court

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in case of Santosh Prasad Vs. State of Bihar {2020 (3) SCC

443} and case of Nirmal Premkumar vs. State Represented

by Inspector of Police {(2024) 20 SCC 293}.

26.Consequently, the point No. 2 is answered in favour of the

appellant.

27.Considering the evidence that the victim’s evidence is not of

sterling quality, medical evidence has not corroborated the

commission of offence of rape and also considering that

prosecution has failed to prove that the age of victim is below 18

years to attract the offence of POCSO Act and further

considering that the victim has denied the factum of commission

of offence of rape and not supported the case of the prosecution,

the judgment of conviction passed by the learned trial Court

against the present appellant deserves to be set aside and

accordingly, it is set aside.

28.Consequently, the instant appeal is allowed. The appellant be

released from jail forthwith, if not required in any other case.

Sd/- Sd/-

(Narendra Kumar Vyas) (Sudhir Kumar)

JUDGE JUDGE

Sd/-

Deshmukh