Chattisgarh High Court
Mayank Thakur vs State Of Chhattisgarh on 23 March, 2026
1
2026:CGHC:13846
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 505 of 2024
Mayank Thakur, S/o Late Shri Pramod Thakur, aged about 24
years, R/o Malhapara, Mungeli, P.S. Kotwali, Tahsil and District
Mungeli, Chhattisgarh
... Appellant
versus
State of Chhattisgarh, through S.H.O. P.S. City Kotwali Mungeli,
District : Mungeli, Chhattisgarh
... Respondent
For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent/State : Mr. Amit Verma, Panel Lawyer For Complainant : Mr. Ramayan Yadav, Advocate Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (23.03.2026)
1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 27.02.2024 passed by learned Special Judge (FTSC) POCSO Act, Mungeli (C.G.), in Special 2 Criminal Case No.10/2023, by which the appellant has been convicted and sentenced as under:-
Conviction Sentence & Fine
U/s 363 of the IPC RI for 5 years and to pay fine of
₹500/-; in default of payment of
fine, SI for 2 months
U/s 366 of the IPC RI for 5 years and to pay fine of
₹500/-; in default of payment of
fine, SI for 2 months
U/s 4 of the POCSO Act RI for 10 years and to pay fine as also U/s.376(1) of of ₹1000/-; in default of the IPC payment of fine, SI for 2 months [However, in light of Section 42 of the POCSO Act, sentenced/punished only U/s 4 of the POCSO Act] All the sentences were directed to run concurrently Prosecution story:-
2. The prosecution case, in brief, is that on 13.02.2023, the victim's paternal uncle/complainant (PW-04) lodged a written report at the City Kotwali Police Station, Mungeli, stating that on 10.02.2023, at approximately 11:00 AM, his niece (the victim) had gone to the market to purchase goods. The accused, Mayank Thakur, forcibly seized her, threatened her with death, took her to his residence in 3 Malhapara, and subjected her to forcible sexual intercourse; as a result, his niece (the victim) remains terrified and traumatized. The complainant became aware of the incident only on 13.02.2023, when the victim confided in him about the occurrence; consequently, he was unable to lodge an immediate report regarding the incident. Based on the complainant's written report (Exhibit P-07), a First Information Report (Exhibit P-08) regarding the incident was registered against the accused. Thereafter, the investigation was initiated and the victim underwent a medical examination. Statements of witnesses were recorded. Documents related to the victim's age verification were seized. After completion of the investigation, the charge sheet was filed.
3. During the course of trial, in order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 24 documents including Ex.C-1. Statement of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. However, two defence witnesses have been examined by the Appellant in support of his case.
4. The learned Trial Court after appreciating the oral and 4 documentary evidence available on record, acquitted the appellant of offence U/s 506 part II of IPC. However, convicted and sentenced him as mentioned in the opening paragraph of this judgment, against which the instant appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment.
Submission of the Parties:-
5. Learned counsel for the appellant submits that the victim (PW-1) was a consenting party with the accused/appellant. The prosecution has failed to prove through valid evidence that the victim was a minor and below 18 years of age at the time of alleged incident. In such a situation, the said offences cannot said to be proved. Hence, considering the above, it is prayed that the appeal may be allowed and the impugned judgment may be set aside and the accused/appellant may be acquitted of the charges levelled against him.
6. On the other hand, learned counsel for the State submits that the finding recorded by the Trial Court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may 5 be dismissed.
7. I have heard learned counsel appearing for the parties and perused the record with utmost circumspection.
Age Determination
8. According to the prosecution's case, the date of birth of the victim is stated to be 14/04/2005, and as per the prosecution, the incident occurred on 10/02/2023. Based on calculations, the age of the victim as of the date of the incident works out to be approximately 17 years, 9 months, and 27 days. To substantiate the date of birth, the school's Dakhil Kharij Register (Exhibit P-5/C) was seized and produced; this document has been certified by Parath Lal Kulmitra (PW-3), the Principal of Vivekananda Vidyapeeth High School. The appellant's side contends that the prosecution has failed to establish that, on the date of the incident, the prosecutrix was a minor under the age of 18 years.
9. The Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony 6 of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder :-
"14. 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."
15. 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 7 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."
10. Hon'ble Supreme Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has held that:-
"the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 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 the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case 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."
11. How, dakhil-kharij register is treated to be relevant came up for consideration before the Hon'ble Supreme Court in Babloo Pasi v. State of Jharkhand and another (2008) 13 SCC 133, wherein it has been held as under:-
"22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of 8 a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.
28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to 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. (See: Birad Mal Singhvi v. Anand Purohit (1997) 4 SCC 24)."
12. The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:-
"26. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.
34. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant 9 when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case."
13. In light of the aforementioned judicial precedents, a scrutiny of the evidence presented by the prosecution clarifies the position that the victim (P.W.-1) has stated her date of birth as 14/04/2005 in her deposition before the Court. Significantly, the accurate date of birth of any child can best be provided by their parents. The information possessed by the victim herself is invariably based upon the details furnished by her guardians, or the victim party acquires such knowledge based on the date of birth recorded in the school register. In the instant case, the veracity of the specific fact being examined is whether the date of birth 14/04/2005 recorded in the Dakhil Kharij Register is, in fact, the correct date of birth.
14. Regarding the date of birth, Principal Parth Lal Kulmitra (PW-3), in his testimony, has acknowledged that the victim was admitted to Class I at his school on 16.06.2010, and left the school on 01.05.2015, after passing Class V. It is evident from his entire testimony that the year of birth--2005--recorded for the victim in the 10 Dakhil Kharij Register (Exhibit P-5/C) bears signs of overwriting. He further admitted that a perusal of the register does not clarify who accompanied the victim at the time of her admission to the school. Thus, it remains unclear whether the recorded date of birth was entered based on a date of birth provided by any guardian of the victim.
15. Principal Parth Lal Kulmitra (PW-3) also admitted during cross-examination that, at the time of admission, a 'Tatima' form is required to be filled out, to which either a birth certificate is attached or--in the absence thereof--an affidavit is obtained from the guardian. However, in the case of the victim, the basis upon which the date of birth was recorded in the Tatima form remains unclear, as neither a birth certificate nor a guardian's affidavit is attached to it. Consequently, the recorded date of birth i.e. 14.04.2005 becomes a matter of doubt.
16. Principal Parth Lal Kulmitra (PW-3) has also admitted that he cannot state whether the date of birth recorded for the victim in the school records is accurate or not. He further conceded that, regarding the year of birth, specifically where an overwriting appears, the signature of the victim's guardian, who facilitated her admission, was 11 not obtained. He also admitted that the victim's parents were not present with her at the time of her school admission; furthermore, her father (PW-11) admitted in Paragraph 8 of his cross-examination that the date of birth he provided for the victim was stated merely on the basis of an estimate. Thus, upon a comprehensive consideration of the entire evidence and in accordance with established judicial precedents, the prosecution has failed to prove beyond a reasonable doubt that the victim's date of birth was indeed 14/04/2005. Under these circumstances, the benefit of doubt accrues to the defense, and the Trial Court's conclusion that the victim was under the age of 18 years on the date of the incident, is found to be untenable.
Consenting party:-
17. According to the prosecution's case, on the date of the incident, when the victim went to the market, the accused near the Bharat Book Depot forcibly gagged her with a cloth, seated her in his vehicle, and drove her to the society; thereafter, he took her to his home on foot, where he forcibly subjected her to rape. Furthermore, having detained her in the house for two hours, he threatened her while brandishing a knife that she must not disclose the incident to anyone, warning that he would otherwise shoot 12 her dead; he also administered a liquid to her after mixing something into it. However, upon examining the Court statement, a discrepancy is evident in the victim's testimony before the Court. In her Court statement, she did not state that the accused had taken her away after gagging her with a cloth, nor did she mention that he had threatened her by brandishing a knife. While her Court statement does indeed mention the act of intimidation, it makes no reference to the display of a knife. Thus, a contradiction exists between the victim's Court statement and the statement she had previously given.
18. A second significant fact is that the incident is alleged to have occurred on 10.02.2023, yet the First Information Report regarding it was registered three days later, on 13.02.2023. On 13.02.2023 itself, the victim underwent a medical examination conducted by Dr. Kavita Kaushik (PW-
08), who subsequently submitted a report marked as Exhibit P-14. According to this report, no marks of injury were found on the victim's body, and no definitive opinion was offered as to whether sexual intercourse had taken place with the victim. Furthermore, according to the chemical examination report (Exhibit C-1), neither semen nor human spermatozoa were detected. Thus, neither the 13 medical evidence nor the chemical examination report corroborates the statement of the victim.
19. In this case, the defense has characterized the victim as a consenting party and has denied the allegation that sexual relations took place. According to the defense, the victim herself wished to marry the accused and had voluntarily come to his home. In this context, reference has been made to the suggestions put forth during the cross- examination of the victim, the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, and the testimonies of defense witnesses Rajeshwari Thakur and Raju Kashyap. According to these two witnesses, the victim was found present in the accused's home in his company; consequently, her family members were informed, whereupon her parents arrived and took her back to their own home--this occurred while the victim was, at that very time, pressuring the accused to elope with her and get married. Significantly, in his statement recorded under Section 313 CrPC, the accused himself has also asserted that the victim was in love with him and desired to marry him. Therefore, she had entered his home without prior intimation; although he and his friends attempted to understand her, she persisted in her 14 insistence on eloping to get married, at which point her family members were summoned. Thus, he has not committed any offense.
20. In order to assess the credibility of the statement given by the accused under Section 313, as well as the statements of the defense witnesses, if one examines the statement of the victim herself, it is evident that she, too, has admitted in her Court testimony that the incident occurred on Friday--a day when the market is held in Mungeli. The site of the incident, the T-junction near the Bharat Book Depot is an extremely busy thoroughfare with constant pedestrian and vehicular movement; furthermore, numerous shops are situated along every road leading to this junction, and the Bharat Book Depot itself was open on the day of the incident. In Paragraph 16 of her statement, she admitted that while the accused was taken her on his motorcycle, she offered no resistance in her defense, nor did she scream. However, she subsequently asserts that she refrained from screaming due to threats issued by the accused. Yet, according to the prosecution's own case, no factual evidence has emerged to suggest that the accused issued any threats prior to taken her on the motorcycle. Moreover, in Paragraph 18, the victim herself 15 admitted that while she was at the accused's residence, her parents arrived at the house and took her back home; significantly, she did not disclose the incident to her parents at that time. Thus, the victim's own testimony lends credence to the statements of the accused and the defense witnesses specifically, the contention that the victim had gone to the accused's house voluntarily, and that her parents subsequently arrived there--having been informed of her whereabouts to take her back to their own home. Consequently, it is clearly established that she was a consenting party.
21. In this situation, when the victim was a consenting party and it has not been proved beyond doubt that she was a minor at the time of the incident, then the alleged offence against the appellant is not proved. In such a situation, the impugned judgment is not sustainable.
Conclusion:-
22. In view of the aforesaid discussion and in light of the above referred judgments, the appeal is allowed and the impugned judgment is hereby set aside. The appellant is acquitted of the said offences.
23. The appellant is in jail, he be released forthwith if not 16 required to be detained in connection with any other case/s.
24. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith. A copy of this judgment be also supplied to concerned Jail Superintendent where the appellant is serving his jail sentence, for information and necessary action.
Sd/-
(Sanjay Kumar Jaiswal) Judge Shubham