School records for age determination lack evidentiary value unless the author of the entry is examined. In the absence of proven minority, consensual physical relations between parties do not constitute rape or kidnapping.

Judgment on Board

Per, Ramesh Sinha, CJ .

1 The present appeal has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 31.01.2023 passed by the Additional Sessions Judge (FTC), Jashpur, in Special (POCSO) Case No.09/2020 whereby the appellant has been convicted and sentenced as under :

2 Brief facts of the case are that, on 17.10.2019 a missing report was lodged by the mother of victim that her minor daughter is missing since 04.10.2019 and her whereabouts could not be traced out. Based on written complaint, an FIR Ex.P/14 was registered by the police against unknown person for the offence under Section 363 IPC and started investigation. On 08.02.2020 the victim was produced by her father before the police at Police Station Dokda, Kanksabel, District Jashpur and recovery Panchnama Ex.P/10 was prepared in presence of witnesses. The victim was sent for her medical examination to Community Heath Centre, Kansabel where she was medically examined by Dr. Anamika Minj, PW-15, who gave her report Ex.P/20. While medically examining the victim, the doctor has not noticed any external injuries on her body and opined that no definite opinion can be given regarding recent sexual intercourse as no fresh injury was found on private part of victim and hymen was ruptured older. Two slides of vaginal swab were prepared, sealed and handed over to police for chemical examination. With respect to date of birth of victim, the police seized school register Ex.P/17 vide seizure memo Ex.P/6 and after retaining its attested true copy, the original was returned back.

According to school register, the date of birth of victim was recorded as 14.08.2005. Spot map Ex.P/4 & P/18 were prepared by the police and P/5 was prepared by the Patwari. The progress report card of victim was also seized by the police. The appellant was arrested on 26.03.2020 and he too was sent for his medical examination to Primary Health Centre, Dokda, Kansabel, where he was examined by Dr. Nilesh Kumar Xalxo who gave his report Ex.P/1 and found him capable to do sexual intercourse.

3 The statement of witnesses under Section 161 CrPC have been recorded. Vaginal slide of victim was sent for chemical examination to FSL and after conclusion of usual investigation charge sheet was filed against the appellant for the offence under Sections 363,366A,376 IPC and Sections 4 &6 of POCSO Act.

4 The trial court framed charge against the appellant for the offence under Sections 363,366 and 376 IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial.

5 In order to establish the charge against the appellant, the prosecution has examined as many as 18 witnesses. Statement under Section 313 CrPC of the appellant have also been recorded in which he denied the circumstances appears against him, pleaded innocence and have submitted that he has been falsely implicated in the offence.

6 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellant and sentenced him as mentioned in opening para of this judgment. Hence this appeal.

7 Learned counsel for respective appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the prosecution witnesses which cannot be made basis to convict him in the offence in question. The entire conduct of victim is suspicious throughout the proceedi