JUDGMENT : RAJANI DUBEY, J. 1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the judgment of conviction and order of sentence dated 05.04.2003 passed by 1st Additional Sessions Judge Raipur, District- Raipur (C.G.) in Sessions Trial No. 110/2001 whereby, the trial court has convicted the appellant and sentenced him as under:- Conviction Sentence U/s 498-A of IPC R.I. for 2 years with fine of Rs.500/- and in default of payment of fine, additional R.I. for 3 months U/s 304-B of IPC R.I. for 7 years 2. Facts of the case in nut shell are that the prosecutrix was residing at Village Bharwadih with her parents and was studying in 8th class. The appellant/accused was also residing in the same village and was secretary of the Gram Panchayat of Bharwadih and he was married. Two months prior to 07.10.2000, the appellant used to talk to the prosecutrix and on the false pretext of marriage, he took the prosecutrix with him to various places and committed sexual intercourse with her. Thereafter, the matter was reported to the police station and FIR bearing Crime No. 192/2000 was registered for the offence under Sections 363, 366 & 376 of IPC. After completion of necessary formalities, charges for the offence under Sections 363, 366, 368, 376/34 of IPC were framed against the appellant and other co-accused persons before the concerned trial Court. Thereafter the matter was committed to the Sessions Court. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. In his defence, he examined one Bhagirathi Verma as D.W.-1. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 05.04.2003, finding evidence adduced by the prosecution trustworthy, convicted the the appellant under Sections 363, 366 & 376 of IPC and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment passed by the trial Court is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the case. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment passed by the trial Court is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the case. Learned trial Court ought to have seen that no document regarding the age of the prosecutrix was filed or proved by the prosecution. Learned trial Court erred in convicting the appellant particularly when the doctor did not give any definite opinion with respect to commission of sexual intercourse. Learned trial Court erred in disbelieving the defence witness Bhagirathi Verma. She further submits that the learned trial Court erred in not holding that the prosecutrix is a consenting party as she went along with the appellant and never objected therefore erred in convicting the appellant. Learned trial Court on the basis of the material available on record held conviction of the appellant which is not sustainable in the eyes of law and also looking to the material available on record, appellant should have been given the benefit of doubt. Prosecution was completely failed to prove its case against the appellant. Therefore, the impugned judgment may be set aside. 6. Reliance has been placed on this Court’s judgment dated 06.12.2023 in the matter of Kishan Dehariya Vs. State of Chhattisgarh passed in CRA No. 559 of 2022. 7. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly appreciated the oral and documentary evidence and convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court. 8. Heard learned counsel for the parties and perused the material available on record. 9. It is clear from the record of trial Court that the learned trial Court framed the charges under Sections 363, 366 and 376 of IPC against the accused/appellant- Jageshwar and charge under Section 368 of IPC was framed against the co-accused persons namely Jhadiram and Basant. 10. After appreciating oral and documentary evidence, the learned trial Court acquitted the co-accused persons of the offence under Section 368 of IPC and convicted the appellant- Jageshwar for the offence under Sections 363, 366 and 376 of IPC. Prosecution examined 14 witnesses. 11. As per father of the prosecutrix (P.W.-1), the age of his daughter (prosecutrix) was around 13-14 years at the time of incident. Prosecution examined 14 witnesses. 11. As per father of the prosecutrix (P.W.-1), the age of his daughter (prosecutrix) was around 13-14 years at the time of incident. In examination-in-chief, he stated that he did not remember the date of birth of his daughter. 12. Prosecutrix (P.W.-2) stated that her date of birth is 03.11.1986. For age determination of the prosecutrix, Dr. Meena Samule (P.W.-3) referred her for X-ray vide Ex. P/4 but no X-ray report was produced by the prosecution. 13. Manharan Lal Verma (P.W.-7), principal-in-charge of middle school, Mohrenga stated that the police seized Dakhil Khariz register as seizure memo (Ex.P/5) and he gave birth certificate (Ex.P/7) of the prosecutrix on the basis of date of birth mentioned in the Dakhil Khariz register. As per the said Dakhil Khariz register, on 10.08.1998, prosecutrix was admitted in class 6th in school. In cross-examination, he admitted that he did not know the actual date of birth of the prosecutrix. 14. Thus, it is clear that the prosecutrix was admitted in 6th class in 1998 and as per her previous certificate, her date of birth was recorded in Dakhil Khariz register. 15. This Court in the matter of Kishan Dehariya Vs. State of Chhattisgarh passed in CRA No. 559 of 2022 vide order dated 6.12.2023 held in paras 18 & 19 as under:- 18. 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. 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 Vs. Anand Purohit[ (1997) 4 SCC 24 ]”. 19. In the case of C. Doddanarayan Reddy (Dead) by Legal Representatives and ors. Vs. C. Jayarama Reddy (Dead) by Legal Representatives and ors. [ (2020) 4 SCC 659 ], Hon’ble Supreme Court while considering the fact that how date of birth mentioned in school record can be considered and relied upon reiterating law laid down in the case of Birad Mal Singhvi v. Anand Purohit, [1988 Supp SCC 604], has observed in para 17, 18 and 19 as under :- “17. In Birad Mal Singhvi [ Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604], the date of birth was sought to be proved by the Principal of the school. Though, the Principal could not produce the admission form in original or its copy. It was held therein that the entries contained in the school's register are relevant and admissible but have no evidentiary value for the purpose of proof of date of birth of the candidates. A vital piece of evidence was missing as no evidence was placed before the court to show on whose information the date of birth was recorded in the aforesaid document. A vital piece of evidence was missing as no evidence was placed before the court to show on whose information the date of birth was recorded in the aforesaid document. It was held as under : ( Birad Mal Singhvi case [ Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604], SCC p. 618, para 14) “14. … No doubt, Exts. 8. 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated, neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. 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.” 18. In Madan Mohan Singh [ Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : (2010) 3 SCC (Civ) 655], this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, 1872 but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. The Court held as under : (SCC pp. The authenticity of the entries would depend on whose information such entries stood recorded. The Court held as under : (SCC pp. 216-17, paras 20-22) “20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the 17 Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 21. For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands believed by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/ nursing home, etc. the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [ Brij Mohan Singh v. Priya Brat Narain Sinha, AIR 1965 SC 282 ], Birad Mal Singhvi v. Anand Purohit [ Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604], Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] and Satpal Singh v. State of Haryana [Satpal Singh v. State of Haryana, (2010) 8 SCC 714 : (2010) 3 SCC (Cri) 1081] .) 22. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 and 61, etc. of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time, etc mentioned therein. (Vide Updesh Kumar v. Prithvi Singh [ Updesh Kumar v. Prithvi Singh, (2001) 2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063] and State of Punjab v. Mohinder Singh [ State of Punjab v. Mohinder Singh, (2005) 3 SCC 702 ] .)” 19. (Vide Updesh Kumar v. Prithvi Singh [ Updesh Kumar v. Prithvi Singh, (2001) 2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063] and State of Punjab v. Mohinder Singh [ State of Punjab v. Mohinder Singh, (2005) 3 SCC 702 ] .)” 19. In a judgment in Ram Suresh Singh v. Prabhat Singh [ Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194], it has been held that entry in the school register may not be a public document and, thus, must be proved in accordance with law. The Court held as under : (SCC p. 687, 19 para 12) “12. The condition laid down in Section 35 of the Evidence Act for proving an entry pertaining to the age of a student in a school admission register is to be considered for the purpose of determining the relevance thereof. But in this case, the said condition must be held to have been satisfied. An entry in a school register may not be a public document and, thus, must be proved in accordance with law, as has been held by this Court in Birad Mal Singhvi [ Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] but in this case the said entry has been proved. 16. In light of above decision, it is clear that the prosecution has failed to prove this fact that on what basis the date of birth of the prosecution was recorded in Dakhil Khariz register. Father of the prosecutrix (P.W.-1) also stated that he did not remember the date of birth of his daughter (prosecutrix) and also no medical evidence was produced by the prosecution in this regard. Hence, the prosecution has failed to proved this fact that at the time of incident, the age of the prosecutrix was below 18 years. 17. It is clear from the statement of the prosecutrix (P.W.-2) that she went with the accused/appellant to different places and stayed there and did not raise any alarm. In para 14 of her cross-examination, she admitted that she was happily travelling from Raipur to Delhi with the accused/appellant. Thus, the conduct of the prosecutrix clearly shows that the she was a consenting party to the act of the appellant. 18. Dr. In para 14 of her cross-examination, she admitted that she was happily travelling from Raipur to Delhi with the accused/appellant. Thus, the conduct of the prosecutrix clearly shows that the she was a consenting party to the act of the appellant. 18. Dr. Meena Samule (P.W.-3) who medically examined the prosecutrix (P.W.-2) did not find any external or internal injury and opined that no definite opinion can be given regarding recent sexual intercourse and gave report (Ex.P/3) in this regard. Hence, the medical evidence also does not support the case of the prosecution. 19. Thus, it is clear that the prosecution has failed to prove this fact beyond reasonable doubt that on the date of incident, the age of the prosecutrix was below 18 years of age and also failed to prove this fact that the appellant committed forcible sexual intercourse with her. 20. For the foregoing reasons, the conviction and sentence of the appellant under Sections 363, 366 and 376 of IPC cannot be legally sustained. The appeal is accordingly allowed. The impugned judgment dated 05.04.2003 is set aside. Consequently, the appellant is acquitted of the charges levelled against him. 21. The accused/appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provisions of Section 437-A of CrPC. 22. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.