RAJESH HEMLA vs STATE OF CHHATTISGARH

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CGHC010404972022 2026:CGHC:45419-DB
AFR
Reserved on : 06.10.2026
Delivered on : 28.10.2026
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1945 of 2022
1 - Rajesh Hemla S/o Sukku Hemla Aged About 26 Years R/o
Chinnakodepal Nayapara, Police Station Modakpal, District Bijapur
Chhattisgarh
... Appellant(s)
versus
1 - State Of Chhattisgarh Through - Police Station - Modakpal District
Bijapur Chhattisgarh
... Respondent(s)

For Appellant : Mr. Parth Kumar Jha and Mr. Palaash Jha,
Advocates
For State : Mr. Saumya Rai, Dy. Govt. Advocate
Hon'ble Shri Justice Narendra Kumar Vyas , Judge and
Hon'ble Shri Sudhir Kumar , Judge
C.A.V. JUDGMENT
Per Narendra Kumar Vyas,J.
1. The appellant by way of this appeal has challenged the judgment
dated 01.12.2022 passed by the Additional Sessions Judge
(FTC) South Bastar Dantewada (CG) in Special Sessions
(POCSO) Case No. 17/2021 whereby and whereunder, he has

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convicted and sentenced the appellant as under :-
Conviction u/S. Sentence RI. Fine In default of
payment of fine
6 of the Protection
20 Years Rs.1000/- Additional RI
of Children from
for one year
Sexual Offences
Act read with
Section 376(3) of
IPC
2. In brief, the prosecution story is that the victim filed written
complaint (Ex.P/1) at Police Station – Modakpal, District –
Bijapur (C.G.) on 01.02.2021 alleging that after Holi, in the month
of March, on 24.03.2020 her mother and father had gone out for
some work and she was sitting outside the home of her maternal
aunt, at about 7:00–8:00 p.m., accused who is related to her as
maternal uncle, came to her. He took her forcefully to a nearby
secluded place in forest, tore her clothes, and forcibly committed
rape upon her. He also told her that he would marry her and
thereafter left. She returned home, but out of fear, she did not
disclose the incident to anyone. Two or three days later, the
accused again came to the house when the other family
members were asleep. He started harassing her and pulling her
clothes, however, somehow she succeeded to escape.
Subsequently, on several occasions, he forcibly established
physical relations with her against her will from 24.03.2020 to
01.02.2021 due to which she became pregnant. On the basis of
the said report, the police registered a named First Information

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Report (FIR) (Ex.P/02) against the accused for offences
punishable under Sections 376 of the Indian Penal Code and
Sections 4 & 6 of the he Protection of Children from Sexual
Offences Act, 2012 (POCSO Act).
3. The investigation was thereafter commenced. After usual
investigation, a charge-sheet was filed against the accused for
offences punishable under Sections 376(2)(n) of the Indian
Penal Code, as well as Sections 4 and 6 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act) before
the Additional Sessions Judge (FTC). Learned trial Court framed
charges under Section 376(3), 376(2)(n), 506(ii) of the IPC and
Section 6 of the POCSO Act. After appreciating the facts and
materials available on record vide judgment dated 01.12.2022
acquitted the appellant of charges punishable under Sections
376(2)(n) and 506(ii) of the IPC and convicted him under Section
376(3) and Section 6 of the POCSO Act.
4. The appellant remained in jail during trial from 03.02.2021 to
17.08.2021. After conviction on 01.12.2022, he is in jail. As such,
he remained in jail for about 4 years and 5 months.
5. Learned counsel for the appellant would submit that the
prosecution has failed to establish the age of the victim. Although
the Dakhil Kharij Register was exhibited (Ex.P/15) before the
learned trial Court, the person at whose instance the entry
regarding the date of birth of the victim was recorded has not
been examined, nor the foundational record supporting such

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entry has been produced. It is contended that, in absence of
proper proof and corroboration of the entry by the underlying
record, the same can not be relied upon to conclusively establish
the age of the victim. Learned counsel would further submit that
the victim herself has admitted that she was born in the year
2001, whereas the alleged incident pertains to the year 2020.
The father of the victim has stated that she was aged about 18–
19 years, while her mother expressed her inability to recollect
her age. Thus, the evidence adduced by the prosecution does
not establish conclusively that the victim was a minor at the time
of the alleged incident. Still, the learned trial Court has
erroneously convicted the appellant by invoking the provisions of
the POCSO Act.
6. Learned counsel would further submit that the medical evidence
does not lend support to the prosecution's case. It is further
submitted that, despite having found the relationship between
the appellant and the victim to be consensual, the learned trial
Court has erroneously convicted the appellant without properly
appreciating the evidence relating to the victim's age. Thus, the
impugned judgment of conviction suffers from perversity,
illegality and improper appreciation of the evidence on record,
therefore, he prays that the impugned judgment of conviction be
set aside and the appellant be acquitted of the charges levelled
against him. To substantiate his submission he has relied upon
judgment of the Hon’ble Supreme Court in case of Manak
Chand @ Mani vs The State Of Haryana {2024 (20) SCC 571}

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and judgment of Hon’ble High Court of Kernataka in case of
State of Karnataka vs. Sri. Nagesh {Crl. A. No. 100570 of
2022}.
7. The aforesaid submission has been vehemently objected by the
learned counsel for the State and he would submit that the
learned trial Court after appreciating the evidence and material
on record rightly convicted the appellant, which does not warrant
interference by this Court. He refuted the submission of the
learned counsel for the appellant and would submit that the
prosecution has proved the age of the victim. From perusal of
the Dakhil Kharij Register, it is quite vivid that the date of birth of
the victim is 07.05.2006, as such she was minor at the time of
incident. Learned State counsel would further submit that, once
the victim is established to be a minor within the meaning of the
POCSO Act, her consent, even if the relationship is alleged to be
consensual, is immaterial in law. It is further contended that the
medical evidence is not the sole determinant for establishing the
commission of the offence. Further, the DNA Report (Ex. P/26),
establishes that the accused the biological father of the child and
said evidence is undoubtedly significant for establishing the fact
of sexual assault. As such, even if the appellant succeeds in
proving the age of the victim to be major, even then the offence
under Section 376 of the IPC is made out against the appellant
and he would be convicted for commission of the offence under
Section 376 of the IPC on the basis of material brought on
record by the prosecution in absence of any formal charge

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framed by the trial Court and he would pray for dismissal of the
appeal.
8. We have heard learned counsel for the appellant and the State
and perused the record of the trial Court with utmost satisfaction.
9. From perusal of the record and submission of the learned
counsel for the parties, the principal questions that arise for
consideration in the present appeal are :-
1. Whether the prosecution has established beyond
reasonable doubt that the victim was a minor at the time of the
alleged incident as such his conviction under Section 6 of the
POCSO Act and Section 376(3) of the Indian Penal Code, are
sustainable?”
2. Alternatively, whether the accused can be convicted under
Section 376 of the IPC on the basis of evidence and material
on record?
Discussion and findings on Point No.1
10. The determination of the age of the victim assumes significance
in the facts of the case, as the applicability of the provisions of
the POCSO Act as well as conviction of the appellant under
Section 376(3) of depends upon proof that the victim was a child
within the meaning of Section 2(1)(d) of the POCSO Act at the
relevant time as well as whether the victim is below 16 years to
attract the conviction of the appellant under Section 376(3) of the
IPC.
11. Rule 12 of the Juvenile Justice (Care and Protection of Children)

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Rules, 2007 deals with the determination of age of a minor which
reads as under :-
12. Procedure to be followed in determination of age:-
(1)In every case concerning a child or a juvenile in
conflict with law, the Court or the Board, as the case
may be, the Committee referred to in rule 19 of these
rules shall determine the age of such juvenile or child or
a juvenile in conflict with law within a period of thirty
days from the date of making of the application for that
purpose.
(2)The Court or the Board or, as the case may be, the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or, as the case may be, the juvenile
in conflict with law, prima facie on the basis of physical
appearances or documents, if available, and send him
to the observation home or in jail.
(3)In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be
conducted by the Court or the Board or, as the case
may be, the Committee by seeking evidence by
obtaining-
(a)(i)the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii)the date of birth certificate from the school (other than
a play school) first attended; and in the absence
whereof;(iii)the birth certificate given by a corporation or
a municipal authority or a panchayat;
(b)and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year, and, while passing orders in such case
shall, after taking into consideration such evidence as
may be available, or the medical opinion, as the case
may be, record a finding in respect of his age and either
of the evidence specified in any of the clauses (a)(i), (ii),

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(iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the
juvenile in conflict with law.
(4)If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the
date of offence, on the basis of any of the conclusive
proof specified in sub-rule (3), the Court or the Board or,
as the case may be, the Committee shall in writing pass
an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and
these rules and a copy of the order shall be given to
such juvenile or the person concerned.
(5)Save and except where, further inquiry or otherwise
is required, inter alia, in terms of section 7-A, section 64
of the Act and these rules, no further inquiry shall be
conducted by the Court or the Board after examining
and obtaining the certificate or any other documentary
proof referred to in sub-rule (3) of this rule.
(6)The provisions contained in this rule shall also apply
to those disposed off cases, where the status of
juvenility has not been determined in accordance with
the provisions contained in sub-rule (3) and the Act,
requiring dispensation of the sentence under the Act for
passing appropriate order in the interest of the juvenile
in conflict with law.

12. Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 deals with presumption and determination of
age which reads as under :-
94. Presumption and determination of age-
(1)Where, it is obvious to the Committee or the Board,
based on the appearance of the person brought before it
under any of the provisions of this Act (other than for the
purpose of giving evidence) that the said person is a child,
the Committee or the Board shall record such observation
stating the age of the child as nearly as may be and
proceed with the inquiry under section 14 or section 36, as
the case may be, without waiting for further confirmation of
the age.
(2)In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as

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the case may be, shall undertake the process of age
determination, by seeking evidence by obtaining -
(i)the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii)the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii)and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board:Provided such age
determination test conducted on the order of the
Committee or the Board shall be completed within fifteen
days from the date of such order.
(3)The age recorded by the Committee or the Board to be
the age of person so brought before it shall, for the purpose
of this Act, be deemed to be the true age of that person.
13. The prosecution to prove the age of the Victim has examined
PW/6 the Head Master of the School who has exhibited the
Dakhil Kharij Register (Ex.P/15) wherein the date of birth of the
victim has been recorded as 07.05.2006 and who in cross has
admitted that neither he was posted at the time of admission of
the victim nor on what basis the date of birth has been recorded
is known to him. He has also admitted that he has not admitted
the victim in the school.
14. The Father of the victim (PW/3) has not supported the case of
the prosecution and denied that the appellant has committed
illegal act upon the victim but admitted that the victim has given
birth to a child and DNA was conducted. He has also admitted
that he has recorded the date of the birth of the victim on
guessing. Similarly, victim’s mother (PW/4) has not supported
the case of the prosecution and denied that the appellant has
committed forceful act upon the victim by which she became

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pregnant and now he is refusing to marry her daughter. She has
also denied her statement (Ex.P/13) recorded before the Police.
15. The victim (PW/02) in her examination-in-chief has stated that
she was born in year 2001 and has not supported the case of
the prosecution, as such she turned hostile therefore, the
prosecution was allowed to put leading questions to her. But,
again in paragraph 10 she has denied that on 24.03.2020 the
accused has forcefully taken her to the forest, where after
tearing her clothes, he committed rape on her and when she
asked for marriage, then he told that he will perform the marriage
subsequently and in the house itself after threatening her has
committed illegal act 3-4 times. She has denied about her
pregnancy also with the accused and also denied recording of
biological father of the deceased child as accused.
16. From the appreciation of these evidences it is quite vivid that the
prosecution has not adduced cogent evidence to prove the age
of victim as the author of the document was not examined before
the trial Court nor any document which is required to prove the
age has been produced by the prosecution. Thus, the finding of
the learned trial Court at paragraph 19, 22 and 23 that the date
of birth of the victim is 07.05.2006 relying upon the Dakhil Kharij
Register on the pretext that the said document was produced by
the prosecution from the custody of the government servant
which has been maintained by the school in due course of
business while running of the school and there is no evidence
brought on record by the accused regarding fabrication and

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manipulation in the records, as such the entry made in the
Dakhil Kharij Register is relevant for determination of age of the
victim as per Section 35 of the Evidence Act are perverse,
contrary to the evidence, material and against the law laid down
by the Hon’ble Supreme Court in case of Manak Chand @ Mani
vs The State Of Haryana {2024 (20) SCC 561} wherein the
Hon’ble Supreme Court has examined how date of birth has to
be proved and held as under:-
18. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp
SCC 604 had observed that the date of birth in the register of a
school would not have any evidentiary value without the
testimony of the person making the entry or the person who gave
the date of birth.
“14. …The date of birth mentioned in the scholar’s register
has no evidentiary value unless the person who made the entry
or who gave the date of birth is examined. The entry contained in
the admission form or in the scholar’s register must be shown to
be made on the basis of information given by the parents or a
person having special knowledge about the date of birth of the
person concerned. If the entry in the scholar’s register regarding
date of birth is made on the basis of information given by
parents, the entry would have evidentiary value but if it is given
by a stranger or by someone else who had no special means of
knowledge of the date of birth, such an entry will have no
evidentiary value.”
19. In our opinion, the proof submitted by the prosecution with
regard to the age of the prosecutrix in the form of the school
register was not sufficient to arrive at a finding that the
prosecutrix was less than sixteen years of age, especially when
there were contradictory evidences before the Trial Court as to
the age of the prosecutrix. It was neither safe nor fair to convict
the accused, particularly when the age of the prosecutrix was
such a crucial factor in the case.
17. The further finding at paragraph 20 that as per Section 94 of the
Juvenile Justice Act, the Dakhil Kharij Register is primary
document to prove the age of the victim and there is no reason

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to disbelieve the same as well as the finding in paragraph 21
that the accused has failed to prove the age of the victim is
above 18 years is also erroneous finding in view of Section 34(1)
of the POCSO Act as Section 34(1) provides that where any
offence under this Act is committed by a child, such child be
dealt with under the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015. The Section 94 of the JJ Act,
2015 which has already been extracted above by this Court,
provides presumption and determination of the age, thus evident
from conjoint reading of Section 34 POCSO Act and Section 94
of the JJ Act, 2015, it is clear that wherever the dispute with
respect to the age of the person arises in context of her or him,
being a victim, under the POCSO Act the courts have to take
recourse to the steps indicated in Section 94 of the JJ Act. This
view of this Court is fortified by the judgment of the Hon’ble
Supreme Court in case of Jarnail Singh vs. State of Haryana
{2013 (3) SCC 263} as well as its judgment in case of P.
Yuvaprakash v. State Rep. by Inspector of Police
{ (2024) 17 SCC 684}.
18. From the said provision, it is crystal clear that the finding of the
learned trial Court victim was a child as per the POCSO Act is
erroneous finding and contrary to the law laid down by the
Hon’ble Supreme Court in its latest judgment in case of
Pynchemalangaki Bareh vs. State of Meghalaya {2026 SCC
Online SC 1821} wherein the Hon’ble Supreme Court has held
as under :-

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36. In the case at hand, the Investigating Officer did not
obtain the birth certificate from the school where the victim
had studied or the matriculation or equivalent certificate
from the examination Board concerned or birth certificate
given by a corporation, a municipal authority or a
panchayat, to prove that the victim was a minor on the date
of offence. The victim was also not sent for any age
determination test as provided under Rule 12 of the 2007
Rules or under Section 94(2)(iii) of the JJ Act which is in
pari materia with Rule 12 of the 2007 Rules. The said
provision prescribes that in the absence of the date of birth
certificate from the school or the matriculation or equivalent
certificate from the examination Board concerned, or birth
certificate given by a corporation, a municipal authority or a
panchayat, the age shall be determined by an ossification
test or any other latest medical age determination test
conducted on the orders of the Committee or the Board.
Admittedly, the victim was not subjected to any ossification
test or any other latest medical age determination test. The
only document available on the record for proving the age
of the victim is the Baptismal Certificate issued by the
Khasi Jaintia Presbyterian Assembly. Although the date of
birth in the Baptismal Certificate finds corroboration in the
deposition of P.W.-2, the mother of the victim girl, stating
the girl was born on 05.03.2006, yet since the document
itself is not the one prescribed under Section 94 of the JJ
Act, we are of the considered view that the prosecution has
failed to prove the age of the victim in the manner required
under Section 94 of the JJ Act.
19. Thus, the minority of the victim has not been established by the
prosecution as no statutory document as required has been
produced nor age determination by an ossification test or any
other latest medical age determination test has been conducted
by the prosecution to prove the age of the victim. Therefore, the
conviction of the appellant under Section 6 of the POCSO Act as
well as offence under Section 376(3) of the IPC deserves to be
set aside and accordingly it is set aside by granting benefit of
doubt. Consequently, the point for determination No. 1 is
answered in favour of the appellant.

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Discussion and findings on Point No. 2:-
20. The submission of the learned counsel for the State that even if
the offence under the POCSO Act has not been established still
the offence under Section 376 of the IPC is proved by the
prosecution beyond reasonable doubt, therefore, the appellant
can be convicted under Section 376 of the IPC is being
considered by this Court now.
21. The learned counsel for the appellant would submit that since no
charge has been framed against the appellant for commission of
offence under Section 376 of the IPC, therefore, conviction
cannot be altered by this Court. He would further submit that the
victim was consenting party and she has not supported the case
of the prosecution as such, he deserves to be acquitted from the
offence under Section 376 of the IPC also.
22. The submission by the learned counsel for the appellant that in
absence of charges framed under Section 376 of the IPC the
conviction cannot be ordered by this Court is misconceived, as
the Section 464 (1) of the Cr.P.C. clearly provides that effect of
omission to frame or absence of or error in charges, the finding,
sentence or order by a court of competent jurisdiction cannot be
held to be invalid. Further, the powers of the appellate Court are
not curtailed due to error by the trial Court in framing necessary
charges under Section 376 of the IPC as the power of the
appellate Court is wide enough in such cases to alter the finding
and nature and extent of sentence awarded by the trial Court.
Therefore, this Court can very well examine the issue whether

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the appellant can be convicted upon the evidence already
produced by the prosecution for commission of offence under
Section 376 of the IPC.
23.From the evidence of the victim, it is quite vivid that PW/2 victim
has not supported the case of the prosecution and denied that
the accused has taken her forcefully to the forest on 24.03.2020
where after tearing the clothes he has committed rape or he has
committed the same incident thrice-four times and also denied
that in the hospital he has recorded the name of father of the
deceased child as the appellant.
24.The victim was examined by the Doctor (PW/7) who in her
examination in chief has stated at paragraph 4 of the evidence
that there is no injury on the body or private part of the victim
regarding struggle or forceful commission of offence and even
there is no any medical evidence to indicate force or resistance
by the victim for conviction of the appellant under Section 376 of
the IPC. Further, the prosecution in this case has failed to offer
any reasonable explanation for delay in lodging the FIR though it
is well settled position of law that delay in lodging the FIR in
offence related to women is always not fatal but it is equally well
settled position of law that the delay in registration not only dilute
the inherent credibility of the prosecution story but also result in
loss of valuable forensic and medical evidence, which, if
collected promptly, could either substantiate or contradict the
allegation. The Hon’ble Supreme Court in case of Parkash
Chand vs. State of Himachal Pradesh {(2019) 5 SCC 628}

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has held as under :-
20. There is admittedly a delay of 7 months in lodging the
FIR in the case of alleged rape. If the case is reported
immediately apart from the inherent strength of the case
flowing from genuineness attributable to such promptitude,
the perceptible advantage would be the medical
examination to which the prosecutrix can be subjected and
the result of such examination in a case where there is a
resistance. It is the case of the prosecution that she raised
hue and cry and therefore apparently she would have
resisted. Possibly, a medical examination may have
revealed signs of any resistance or injuries. In this case
the High Court has proceeded on the basis of testimony of
the prosecutrix and sought to fortify it by the extra judicial
confession made before PW4 and PW5.
25.Further there is no dispute that the DNA Report Ex. P/26,
establishes that the accused was the biological father of the
child born to the victim. The said evidence is undoubtedly
significant as it establishes the fact of sexual intercourse
between the parties. However, from the evidence of the victim,
the Doctor (PW/7) and the DNA report by themselves do not
establish the circumstances whether the physical relationship
was forceful nor does it determine whether the relationship was
consensual. It is trite law that offence under Section 376 of the
IPC hinges in absence of consent. Mere proof of sexual
relationship even if resulting in pregnancy, is insufficient to prove
rape unless it is also shown that the act was non-consensual.
Considering the fact that the victim’s statement does not inspire
confidence or trustworthy or unblemished and of sterling quality,
it will not be safe for this Court to convict the appellant for
commission of offence under Section 376 of the IPC. The view of
this Court is fortified by judgment of the Hon’ble Supreme Court

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in case of Santosh Prasad Vs. State of Bihar {2020 (3) SCC
443} and case of Nirmal Premkumar vs. State Represented
by Inspector of Police {(2024) 20 SCC 293}.
26.Consequently, the point No. 2 is answered in favour of the
appellant.
27.Considering the evidence that the victim’s evidence is not of
sterling quality, medical evidence has not corroborated the
commission of offence of rape and also considering that
prosecution has failed to prove that the age of victim is below 18
years to attract the offence of POCSO Act and further
considering that the victim has denied the factum of commission
of offence of rape and not supported the case of the prosecution,
the judgment of conviction passed by the learned trial Court
against the present appellant deserves to be set aside and
accordingly, it is set aside.
28.Consequently, the instant appeal is allowed. The appellant be
released from jail forthwith, if not required in any other case.
Sd/- Sd/-
(Narendra Kumar Vyas) (Sudhir Kumar)
JUDGE JUDGE
Digitally
signed by
KISHORE
KUMAR
DESHMUKH
Date:
2026.10.28
18:31:37
+0530
Sd/-
KISHORE
KUMAR
DESHMUKH
Deshmukh