Vishal Mukhi Vs State of Chhattisgarh

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2026:CGHC:2707-DB

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NAFR

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BABLU RAJENDRA BHANARKAR

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Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2026.01.19 17:32:04 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 356 of 2022

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Vishal Mukhi S/o Badal Mukhi Aged About 20 Years Resident Of Bharti Nagar, Talapara, Police Station-Civil Line, Bilaspur District-Bilaspur Chhattisgarh.

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... Appellant

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versus

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State Of Chhattisgarh Through The Station House Officer, Police Station - Civil Line, Bilaspur District-Bilaspur Chhattisgarh.

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... Respondent(s)

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For Appellant : Mr.Arvind Shrivastava, Advocate For Respondent : Mr.Nitansh Jaiswal, Deputy Government Advocate

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Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge

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Per Ramesh Sinha, CJ

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16/01/2026

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1. The criminal appeal arises out of the judgment of conviction and order of sentence dated 8.1.2021 passed by the First F.T.S.C. (POCSO/Additional Sessions Judge, Bilaspur in Special Sessions

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Case No.10/2019 whereby the appellant has been convicted and sentenced in the following manner :

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Sl.	Conviction	Se	ntence
No.
1.	Under Section	RI for 5 years and	fine of Rs.200/-, in
	363 of the IPC	default of payment undergo RI for 6 mont	of fine to further hs.
2.	Under Section 366-A of the IPC	RI for 7 years and default of payment undergo RI for 8 mon	fine of Rs.300/-, in of fine to further ths.
3.	Under Section	RI for 20 years and	fine of Rs.500/-, in
	376(3) of the IPC	default of payment undergo RI for oneye	of fine to further ar.

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2. The prosecution story, in brief, is that the mother of the victim lives with her family in Minimata Nagar Talapara and works as labourer. Her husband is dead. She has four daughters and three sons, of which youngest daughter is the victim, who is 15 years old. The victim went somewhere without informing anyone from the house on 14.11.2018 at 6 A.M. When she did not return till evening, she was not found after inquiring among the relative nearby. During this time, when the information about accused Vishal of the locality also going missing was received, the complainant lodged a report in the Civil Lines Police Station on 15.11.2018 regarding Vishal sweeper luring and taking away her minor daughter/victim, Rojnamacha Sanha No.1172 (Ex.P-23) was registered and on that basis, Missing Person case No.128/18 (Ex.P-22) and FIR No.989/18 under Section 363 of the IPC was registered. The FIR

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was registered against accused Vishal Mukhi vide Ex.P-5. On the same date, a site map (Ex.P-6) was prepared at the scene based on the witnesses descriptions. When the victim’s mother presented her government primary school marksheet Article A-1, it was seized as per seizure memo (Ex.P-8).

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3. During the investigation, on 22.11.2018 the victim was recovered from the possession of the accused in Bharatiya Nagar Talapara in the presence of witnesses and recovery panchnama (Ex.P-1) was prepared. Memo for recording the statement of the victim was sent to the Incharge, Mahila Thana, Bilaspur vide Ex.P-16 and statement of the victim was recovered vide Ex.P-9. In her statement, the victim told that that the accused had abducted her on the pretext of marriage and had established physical relations with her. On the same date, the victim was sent to the Government Girls Home, Bilaspur as per memorandum (Ex.P-19. On 23.11.2018, memorandum (Ex.P-20) was sent to the Chairman Child Welfare Committee, Bilaspur for handing over the victim for examination. After taking consent (Ex.P-7) from the mother of the victim, the victim was examined in District Hospital, Bilaspur as per the application of Ex.P-2. On the same date, after the medical examination of the victim, on being presented by lady constable Priyanka, two slides of the victim were seized in sealed condition as per seizure memo Ex.P-14. On the same date, the victim’s case under Section 164 CrPC was sent to JMFC, Bilaspur. For recording the statement of the victim, the statement

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taken by giving memorandum Ex.P-21 and order sheet Ex.P-4 were attached. On 7.1.2019 memorandum Ex.P-24 was sent to Tahsildar, Bilaspur for providing the map of the incident spot and the received map Ex.P-29 was attached in the case. The victim’s dakhil kharij register (Ex.P-10) and its attested copy (Ex.P-10C) and certificate (Ex.P-11) were seized from the Headmaster of Government Primary School, Talapara Bilaspur and attached in the case. On 23.11.2018 the accused/appellant was arrested as per arrest memo Ex.P-16, information about him was given to his family members Ex.P-17 and after getting her examined as per memorandum Ex.P-18, a report was attached and underwear of the accused was seized as per seizure memo Ex.P-12. Statements of other witnesses were recorded. The seized property was sent for FSL examination through the Superintendent of Police, Bilaspur the receipt was attached to the case Ex.P-26. Following the investigation, a charge sheet was filed against the accused / appellant under Sections 363, 366 and 376 of the IPC and Section 6 of the POCSO Act.

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4. The trial Court has framed charges against the appellant under Sections 363, 366, 376 of the IPC and Section 6 of the POCSO Act. The appellant abjured his guilt and pleaded innocence.

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5. In order to establish the charge against the appellant, the prosecution examined 13 witnesses. The statement of the appellant under Section 313 of the CrPC was also recorded in

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which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trail Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.

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6. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the victim that on the date of incident she was minor and less than 18 years of age. In absence of examination of author of the dakhil-kharij register, the same cannot be taken into consideration for determination of age of the victim. Dakhil-kharij register is a weak type of evidence. No any 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. It is further argued by the learned counsel for the appellant that the learned trial Court has failed to appreciate that the victim (PW-2) lived with the appellant without any protest for some days and looking to her conduct, it is clearly evident that she has willing and consenting party, therefore, the impugned conviction of the appellant being unsustainable in law, deserves to be quashed. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside / quashed.

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7. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the victim was minor and below 18 years of age at the time of incident, which is proved by the School dakhil-kharij register Ex.P-10C which contains the date of birth of the victim as 7.7.2003. The dakhil-kharij register is admissible piece of evidence to determine the age of the victim. Therefore there is no illegality or infirmity in the findings of the learned trial Court. The victim was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her. As such, the impugned judgment needs no interference.

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8. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection.

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9. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School dakhil-kharij register Ex. P-10C which is sought to be proved by PW-7 Sultana Begum, Headmistress of the Government Primary School, Talapara. Sultana Begum (PW-7) has stated in para 2 of her deposition that the police of Civil Lines police station had seized the dakhil kharij register in connection with the victim birth’s certificate. She had given the true copy of the dakhil kharij register K-4, admission

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number 1443, to the police. Today, she has brought the original register with her, in which the victim’s father Bisenlal Kurre, caste Satnami, address Talapara, is mentioned, in which the date of birth of the victim is is 07.07.2003, which is Ex.P-10, the true copy of which is Ex.P-10C. In para 3 of her cross-examination, she has admitted that she did not make any entries in the dakhil kharij register because she assumed the position of Headmistress on 01.07.2011. She has also admitted that the entries in the dakhil kharij register was not made by her.

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10. At the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her father and on the oral information given by father of the victim the entry was made in the School dakhil kharij register. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the prosecutrix.

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11. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school dakhil-kharij register it would not be safe to hold that the victim was minor on the date of incident. The statement of the victim, as also the statement of PW-7

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Sultana Begum, Headmistress of the Government Primary School, Talapara are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the victim is 07.07.2003.

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12. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604 , the Hon’ble Supreme Court has held as under :

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“26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to 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."

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13. In the matter of 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

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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. It was observed as under

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“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.

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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:-

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"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

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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."

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14. In the matter of Rishipal Singh Solanki Vs. State of Uttar

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Pradesh & Others, (2022) 8 SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under :

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

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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.

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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.

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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

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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.

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33.6. 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.

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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.

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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.

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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.

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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.

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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.”

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15. In the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the Hon’ble

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Supreme Court has held in para 14 to 17 as under :

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“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.

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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:

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“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

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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.”

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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:

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“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

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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.

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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.”

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16. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident, yet the trial Court in the impugned judgment has held her minor, hence, we set aside the finding given by the trail Court that on the date of incident the victim was minor.

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17. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, we have carefully perused the statement of the victim recorded under Section 164 CrPC (Ex.P3). In her 164 CrPC statement (Ex.P-3), the victim has stated that on the date of incident, she went to meet Vishal, who lives in Bharti Nagar at around 6 A.M. Vishal frequently visits her neighborhood, so she know him. On the date of incident, she went to meet him at Shriram Tower near Bharti Nagar at 6 A.M., from there they took Vishal’s scooter to Bilaspur Railway Station, caught a train to Raipur and then from Raipur to Calcutta. After

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arriving in Calcutta, they went to Vishal’s uncle and aunt’s house. A day or two after arriving in Calcutta, Vishal and she went to temple and got married. After the weeding, they stayed at Vishal’s uncle and aunt’s house. On the very night of the wedding, Vishal had sexual intercourse with her. After staying in Calcutta for two days, they returned to Bilaspur on the third day. After arriving in Bilaspur, Vishal took her to his house, from where the police arrested both of them and took them to the Civil Lines police station, where they questioned her about the incident.

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18. In her 164 CrPC statement, she has not stated that the appellant allured or threatened her or used any force while travelling along with him and while making physical relationship with her against her will or consent.

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19. In para 1 of her evidence, the victim (PW-2) has stated that she was approximately 15 years old at the time of the incident. She studied in 5^th grade at Ghoda Dana School, Bilaspur and has currently dropped out of school. The incident occurred approximately four to five months ago. On the date of incident, she arrived at Bharti Nagar at approximately 6 A.M. where accused Vishal called her near Shri Ram Tower. When she arrived at Shri Ram Tower, the accused standing there with his mother. His mother gave the accused three thousand rupees. Vishal then took her to his blue scooter to the railway station and handed over his vehicle to his friend, Bhakla. Vishal and she, then

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went to Calcutta where they stayed at Vishal’s uncle and aunt’s house. The accused parents arrived and forcibly married her to Vishal. They then stayed at the accused uncle and aunt’s house for two or three days. The same day the accused married. He forcibly had physical relations with her last night. They came to Bilaspur the next day and the accused took her to his house, where the police came and prepared a recovery panchnama regarding her recovery.

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20. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

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21. Considering the entire evidence available on record and the conduct of the victim, we are of the opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 363, 366-A and 376(3) of the IPC Act would not be made out against the appellant.

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22. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 08.01.2021 is set aside. The appellant stands acquitted from all the charges. The appellant is in jail. He be set at liberty if not required in any other case.

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23. Keeping in view of the provisions of Section 437-A CrPC (Now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court.

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24. The Trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/- Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha ) Judge Chief Justice

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Bablu

Vishal Mukhi v. State of Chhattisgarh

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Vishal Mukhi v. State of Chhattisgarh

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