[Cites 12, Cited by 0]
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
