Abhijeet Shrivastava @ Anku vs State Of Chhattisgarh

This criminal appeal has been preferred by the appellant under section 374 (2) of the Criminal Procedure Code against the impugned judgement dated 12-10-2023 passed by learned Special Judge (Protection of Children from Sexual Offences Act, 2012) Balod, District Balod, in Special Sessions Case No. 09/2021, whereby the appellant has been convicted and sentenced in the following manner:-

S.No.

Conviction

Sentence

01.

376(2)(n) IPC & Section 6 of the POCSO Act.

Imprisonment for life with fine of Rs. 3000/-, in default of payment of fine, further R.I. for 01 Year.

Since the sentence under section 6 of the POCSO Act has been awarded, no separate sentence under Section 376(2)(n) has been awarded by the learned Trial Court.

The case of the prosecution in brief is that on 18-01-2021, the prosecutrix has lodged a written report (Ex. P-1) to the police station Rajhara that she is residing at Indira Nagar, Rajhara, in the year 2017 when she was giving her open examination, she came into contact of the appellant and started chatting and then he started demanding money from her. In the year 2017 when no one was there in his house he called her in his house and then he committed forceful sexual intercourse with her and thereafter repeatedly committed sexual intercourse with her at Bhilai, Talpuri. He abused her with filthy language and assaulting her and demanding money from her. He has taken her obscene pictures in his mobile and threatened her to get her video viral, therefore, she has lodged the report.

On the basis of the written report lodged by the prosecutrix, the police has registered the F.I.R. (Ex. P-2) on 18-01-2021 under Sections 376(2)(n), 294, 323 of I.P.C. and Sections 4, 5(l), 6, 11(ii) and 12 of the POCSO Act, against the appellant. Spot map Ex.P-3 was prepared by the police in presence of the witnesses. The prosecutrix was sent for medical examination to the Govt. Hospital Doundi, District Balod, where PW-4 Dr. Pushpa has examined her and gave her report Ex. P-13. During her examination, the doctor has found no external or internal injuries over the body of the prosecutrix. No definite opinion was given regarding sexual intercourse however her opinion was depended upon the report of chemical examination of slide in forensic lab. Two slides of vaginal swab of the prosecutrix were prepared and send for its FSL examination. On 19-01-2021, the birth certificate of the prosecutrix was seized by the police vide Ex. P-5. The slides prepared by the doctor was also seized vide Ex. P-16 and the same was sent for F.S.L. examination vide Ex. P-21 to State F.S.L., Raipur, from where the report Ex. P-23 was received and as per the report no sperm was found on the vaginal swab of the prosecutrix. Statement under section 164 of CrPC of the prosecutrix has been recorded on 19-01-2021. On 25-01-2021, the school admission and discharge register from Little Birds Academy English Medium High School, Dalli Rajhara, with respect to date of birth of the prosecutrix has been seized by the police vide Ex. P-13. A true copy of the same containing her date of birth (Article-A(C)) was retained by the police and original school register was given back to the school. According to school admission and discharge register, her date of birth is mentioned as 04-02-2001. The appellant was arrested on 19-01-2021 and he too was sent for his medical examination to Govt. Hospital, Chikhlakasa, District Balod, where Dr. J.R. Chunarkar, P.W. 5 has examined him and gave his report Ex. P-14. According to the medical report, the doctor found nothing to suggest that the said accused is incapable of performing the sexual intercourse. After completion of investigation, the police filed a charge sheet against the appellant before the court of learned Special Judge (POCSO ACT), Balod, for the offences under Sections 376(2)(n), 294, 323 of I.P.C. and Section 4, 5(l), 6, 11(ii) and 12 of POCSO Act.

On 02-07-2021, the learned trial Court has framed charges under Sections 376(2)(n), 294, 323 of I.P.C. and Section 5(l)/6, 11(ii)/12 of POCSO Act. The appellant abjured his guilt and plead innocence and claimed trial.

In order to prove the charges against the appellant, the prosecution has examined as many as 09 witnesses. The statement under Section 313 of Cr.P.C of the appellant was also recorded in which he denied the material appearing against him and pleaded innocence and have submitted that he and the prosecutrix were in love affair and after getting marriage they are residing together. He has not done any wrong with the prosecutrix. In support of his submission, the marriage certificate (Ex. D-1) issued by Additional Collector/Marriage Officer, Balod, has been filed.

After appreciating the evidence available on record, the learned trial Court has convicted the appellant and sentenced him as mentioned in para 1 of this judgement. Hence, this appeal.

Learned counsel for the appellant would argue that the appellant is innocent and has falsely been implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove its case beyond reasonable doubt. There is no legally admissible evidence regarding the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of the author of the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the prosecutrix. No Kotwari register or ossification report are produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 18 years of age. The birth certificate produced by the police has not been proved in accordance with law and the date of birth mentioned in it has been denied by the prosecutrix as well as her parents and narrated her different date of birth. Although the said birth certificate is a public document, but its authenticity is suspicious as there is no evidence that the parents of the prosecutrix have correctly recorded her date of birth in the said birth certificate. It is further argued by the learned counsel for the appellant that the prosecutrix and the appellant were having love affair and she herself accompanied the appellant. The prosecutrix was fully grown-up girl and was a consenting party. No complaint has been made by her to anyone regarding forceful sexual intercourse, or any false promise of marriage. Presently, the appellant has got marriage with the prosecutrix and residing together as husband and wife. Hence, the offence of IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal.

On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted that the prosecutrix was minor and below 18 years of age at the time of incident which is proved by the school admission and discharge register Article-A (C) and the birth certificate, which contains the date of birth of the prosecutrix as 04-02-2001. The school register is the admissible evidence to determine the age of the prosecutrix which has been proved by the Head Mistress Smt. Vijaya Khan (P.W. 3). The birth certificate of the prosecutrix is a public document and the entries made therein is presumed to be correct and therefore, there is sufficient evidence on record to prove the age of the prosecutrix that on the date of incident she was minor and below the 18 years of age. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The minor prosecutrix was abducted by the appellant and kept away from the lawful guardianship and committed sexual intercourse with her against her will and consent. Therefore, the impugned judgement of conviction and sentence needs no interference.

We have heard the learned counsel for the parties and perused the record carefully.

Regarding age of the prosecutrix, the prosecution has mainly relied upon the school admission and discharge register, Article A(C) and birth certificate which is also marked as Article A(C), and the statement of P.W. 3, Smt. Vijaya Khan, who is the Head Mistress of the school. The P.W. 3 have stated in her deposition that she is posted at Little Bird English Medium School, Rajhara, District Balod since 2001. The police has sent a memo for the school admission and discharge register with respect to the prosecutrix’s date of birth. On 25-01-2021, the police has seized the school admission and discharge register vide Ex. P-13 from the Director of the school Shekh Naemuddin Khan. She has brought the original register with her in which the date of birth of the prosecutrix is mentioned as 04-02-2001. The attested true copy of the school register is Article-A(C). In cross examination, this witness has admitted that she is not the author of the school admission and discharge register. She further admits that on what basis the date of birth of the prosecutrix is mentioned in the said school register, is not mentioned in it. She has no knowledge that who got admitted the prosecutrix in the school. She further admits that there is manipulation and overwriting in the entries made in the school register. She further admits that there is a correction of date of birth in the school register. She does not know that the date of birth of the prosecutrix is 04-02-1999 or not. She further admits that the manipulation/overwriting is not countersigned by any of the authority concerned.

The prosecutrix, P.W. 1, have stated in her deposition that her date of birth is 04-02-1999. She denied that the date of birth mentioned in her birth certificate is correctly recorded. She states that she was born at Raipur Hospital. She has further stated that when she met with the appellant, she was major. She has shown her ignorance that who has got prepared her birth certificate Article-A. P.W. 2 mother of the prosecutrix have stated in her deposition that the prosecutrix is her second daughter and her date of birth is 04-02-1999. She further said that in the year 2017, the prosecutrix was aged about 18 years. In cross examination she admits that the date of birth of the prosecutrix is 04-02-1999. P.W. 9 the father of the prosecutrix have not stated any date of birth of his daughter. He has said that he does not remember as to whether any document was seized from his daughter vide Ex. P-5 or not.

The prosecution has relied upon the document of School register of the prosecutrix which is sought to be proved by PW-3, Smt. Vijaya Khan, and the birth certificate of the prosecutrix Article-A. No Kotwari register or ossification test report has been filed by the prosecution. There is manipulation/overwriting in the school admission and discharge register and no initial of the concerned officer is there. P.W. 3 has not said that she is the author of the school admission and discharge register and she has admitted that she could not tell the actual date of birth of the prosecutrix.

Regarding the entry made in the birth certificate of the prosecutrix, the prosecutrix and her parents have denied that the date of birth of the prosecutrix is 04-02-2001 and have submitted that the correct date of birth of the prosecutrix is 04-02-1999. Although the said birth certificate Article-A is a public document as defined under Section 74 of the Indian Evidence Act, 1872, and the entry made therein is relevant fact in the present case to determine the age of the prosecutrix as provided in Section 35 of the Indian Evidence Act, 1872, but the same has to be proved by leading cogent evidence because the person for whom it was prepared and by whom who has got prepared has denied the entry made therein is correct. The prosecutrix and her mother have denied the date of birth of 04-02-2001 is correct, but has submitted that the correct date of birth of the prosecutrix is 04-02-1999. There is no clinching evidence available on record to prove that the date of birth of the prosecutrix is correctly recorded as 04-02-2001.

In case of “Ravinder Singh Gorkhi Vs. State of U.P.”, reported in 2006 (5) SCC 584, the Hon’ble Supreme Court has held that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted in civil and criminal cases. In para 38 and 39, the Hon’ble Supreme Court has held as :-

“38. The age of a person as recorded in the school register or otherwise may be used for various purposes; namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A court of law for the purpose of determining the age of a 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.

We are, therefore, of the opinion that that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstance of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of offence was a minor. He made such statement for the first time while he was examined under Section 313 of the Code of Criminal Procedure.”

The relevancy of school admission and discharge register came for hearing before Hon’ble Supreme Court in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility  of  such  a  document  would  be  of  not  much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that 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 paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under:

"40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

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 birth as mentioned therein could not be accepted."

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"."

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 cannot be relied upon to definitely fix the age of the girl.

We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-

"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law 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."

In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:

"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

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33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

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 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."

Recently, in case of “P. Yuvaprakash Vs. State represented by Inspector of Police”, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under :

"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to 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.

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; 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."

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.

In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."

In the instant case, although the date of birth of the prosecutrix is mentioned in the School admission and discharge register as well as in the birth certificate, and on that basis, on the date of incident, the age of the prosecutrix appears to be below 18 years of age, but as has been observed in the preceding paragraphs that there seems to be material contradictions in respect of age & date of birth of the prosecutrix, and in absence of the material on the basis of which the date of birth of the prosecutrix was mentioned in the school register and birth certificate, it would be unsafe to hold that the prosecutrix was minor on the date of incident. Therefore, we set aside the findings of the trial Court that on the date of incident, the prosecutrix was minor and below 18 years of age.

So far as the allegation of rape is concerned, P.W.-1, the prosecutrix, have stated in her deposition that she is residing alongwith her parents and uncle-aunt and is a student of B.Com. final year. Her date of birth is 04-02-1999. She met the appellant through Facebook and they used to chat regularly. She was in love affair with him since 2017 which continued up to 3 years. During these period, the appellant has made physical relation with her with her consent. In the month of December-2020 proposal of marriage was come and on 13-01-2021 she was engaged with another person, but subsequently that engagement was broken. She alongwith her father went to police station for lodging a report against the appellant and upon her report the F.I.R. is registered against him. She has stated in her deposition that the date of birth mentioned in her birth certificate is wrong. She further said that the appellant has made physical relation with her at Risali Bhilai and Talpuri which were made with her consent. She has said that she has not disclosed before the police that any threat was given by the appellant to get the video viral. In cross examination, she admits that when she met with the appellant, she was major. She went alongwith the appellant at various places and made physical relation with him on her own will and consent. She born at Raipur and she does not know who got prepared her birth certificate from Dalli Rajhara. She further reiterates that her correct date of birth is 04-02-1999 and the date of birth mentioned in her birth certificate is wrong. She further admits that since her engagement was broken, she apprehended that the reason for breaking engagement is that the appellant has got her video viral to her proposed in-laws and therefore, she lodged the report against the appellant. She further admits that her photographs alongwith the appellant was sent to her proposed in-laws by her elder sister and for that reason her engagement was broken. She further states that on the instruction of police, the written report has been lodged. Importantly, in 164 Cr.P.C statement of the prosecutrix, she has not made any allegation that when the appellant made physical relation with her in the month of August-2018 she was not consented or that the physical relation was made against her will.

The mother of the prosecutrix P.W. 2, have stated in her deposition that the prosecutrix is her second number daughter. Her date of birth is 04-02-1999. One year back, they have performed engagement of the prosecutrix, but the same is broken. She further said that in the year 2017, when the prosecutrix was in Class-10th, the appellant proposed her. She denied that on 10-08-2017, the prosecutrix was less than 18 years of age. She does not know that on 10-08-2017 when the prosecutrix went to the house of the appellant, they made physical relation or not. She admitted that the prosecutrix had given money to the appellant after taking it from her father. In cross examination she further admits that the prosecutrix has told her that she is in love affair with the appellant and wants to marry him. She further admits that when they asked to marry with the person of same community, the prosecutrix was agreeing to do that. She has further stated that if the photo of the prosecutrix was not leaked by the appellant, she would not have lodged report against him. She further reiterates that the date of birth of the prosecutrix is 04-02-1999.

The father of the prosecutrix P.W.9 have stated in his deposition that the prosecutrix is his daughter and the appellant is his son-in-law. They were in love affair and presently they got married and residing together at Raipur. Except this, he is not in the knowledge of any incident. He denied any sort of police interrogation. In cross examination, he has said that the appellant has performed court marriage with the prosecutrix on 31-01-2023 and enjoying matrimonial life at Raipur. Their marriage certificate is Ex. D-1 in which the signatures of both the parties are there.

From the evidence it clearly reflects that the prosecutrix has made physical relation with the appellant on her own will and consent. There is no any forceful sexual intercourse by the appellant with her. They were in love affair with each other and they wanted to marry and ultimately the appellant performed court marriage on 31-01-2023 with the prosecutrix and residing together as husband and wife at Raipur. The marriage certificate Ex. D-1 issued by the Additional Collector/Marriage Officer, Raipur, cannot be doubted. Therefore, in peculiar facts and circumstances of the case, it is evidently clear that no forceful intercourse have been committed by the appellant which comes under the definition of rape.

The prosecution has sent the slides prepared from the vaginal swab of the prosecutrix to get it examined by FSL for presence of seman or sperms on that and as per the FSL report Ex. P-23, no seman or sperm were found on the vaginal swab of the prosecutrix.

In view of the forgoing discussions, this court is of the opinion that prosecutrix was a consenting party in the act of sexual intercourse with the appellant. She has not made any complaint to any person of nearby place and has not shouted for help when the appellant making physical relation with her. Neither she was taken by force nor abducted by the appellant. She herself accompanied the appellant on her own will and consent. It is not the case that the appellant has committed forceful sexual intercourse with the prosecutrix without her will or consent.

Considering the entire evidence available on record, the evidence regarding the age and conduct of the prosecutrix, we are of the opinion that the prosecution has failed to prove that the prosecutrix was less than 18 years of age at the time of incident. Further, she was a consenting party with the appellant in making physical relation with him. Therefore, in the above facts and circumstances of the case, the offences under sections 376(2)(n) of I.P.C. and section 6 of POCSO Act are not made out against the appellant.

For the forgoing reasons, the appeal is allowed. The judgement of conviction and order of sentence dated 12-10-2023 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 12-10-2023. He be released forthwith, if not required in any other case.

Keeping in view the provisions of section 437-A of Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of some of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgement or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

The lower court records along with a copy of this judgement be sent back immediately to the trial court, concerned for compliance and necessary action.