Allahabad High Court
Ganesh vs State Of Up And 3 Others on 30 July, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:157952
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 5176 of 2024
Ganesh
.....Appellant(s)
Versus
State Of Up And 3 Others
.....Respondent(s)
Counsel for Appellant(s)
:
Chandra Prakash Singh, Shad Khan
Counsel for Respondent(s)
:
G.A.
Reserved on 20.07.2026 Delivered on 30.7.2026. Court No. - 90
HON'BLE ABDUL SHAHID, J.
1. Heard learned counsel for the appellant and the learned AGA for the State.
2. The present criminal appeal arises out of judgment and order dated 20.4.2024, passed by the learned Special Judge, Exclusive Court (POCSO Act), Maharajganj, in Special Sessions Trial No. 475 of 2016 (State Vs. Ganesh and others), arising out of case crime No. 198 of 2016, under Section 363, 366, 376, 323, 368, 506 and 504 IP/C and Section 16/17 and of POCSO Act, Police Station Shyam Deurwa, District Maharajganj, whereby the appellant has been convicted and sentenced under Section 376 IPC to undergo RI for 10 years with fine of Rs. 3000/, under Section 366 IPC for 7 years with fine of Rs. 2000/, under Section 323 IPC for 6 months.
3. Learned counsel for the appellant has submitted that the victim is aged more than 19 years. She is having very well known of her act. Her date of birth is 12.8.1999. The date of incident is 20.8.2015. The FIR had been lodged on 17.6.2016. The victim has been returned on 23.11.2015. The statement of the victim is recorded as PW-2 on 12.2.2020, in which she has admitted her aged 23 years.
4. PW-3 Dr. Shalini Verma, who has examined the victim has stated that the victim has refused for her internal examination on her own will. As per CMO report, the age of the victim is 19 years on 2.8.2016. It is further submitted by the learned counsel for the appellant that she had been remained with the appellant with her own consent and will consistently for three month at Ludhiana.
5. As per her medical examination, her age is 19 years and more than 18 years at the time of the incident. Even as per her own statement before the learned trial court on 12.2.2020, she herself has claimed that her age is 23 years. If that has to be considered with the date of incident dated 20.8.2015, she is 18 years of age and major at the time of alleged incident.
6. Learned counsel for the appellant has relied on the law laid down by the Supreme court in Birka Shiva Vs. The Staste of Telangana; 2025 Supreme (SC) 1081, where the Court held as under:-
?6. Still aggrieved, the Appellant-convict, pleading his innocence, is before us, challenging his conviction and sentence, as referred to supra. We have heard learned counsel for the parties and also perused the material on record. The issues that arise for our consideration are:
(a) Whether the prosecution has established beyond reasonable doubt that the victim (PW-1) was a minor (under sixteen/eighteen years of age) as on the date of the alleged incident, i.e., 4th August 2012;
(b) Whether the appellant lured or enticed the victim away from the lawful guardianship of her parents without their consent, thereby committing the offence of kidnapping under Section 363 of IPC;
(c) Whether the appellant wrongfully confined the victim and prevented her from moving in any direction out of her volition; and
(d) Whether the appellant forcefully had a physical relationship with the victim to constitute rape under Section 376 of IPC.
OUR VIEW
A) Age of the Victim/Prosecutrix
7. The prosecution has relied primarily on Ex.P11, the birth certificate issued by the Zilla Parishad High School, to establish that the victim was below the age of sixteen years on the date of the alleged offence, i.e., 4th August 2012. According to Ex.P11, the victim’s date of birth was 3rd November 1996, which, if accepted, would make her approximately 15 years 9 months old at the relevant time.
8. The evidentiary value of such an entry made in public or official registers may be admissible in evidence under Section 35 of the Indian Evidence Act, 1872 [Hereinafter referred to as the ‘Evidence Act‘]. However, admissibility is distinct from probative value. While such documents may be admitted into evidence, their evidentiary weight depends on proof of their authenticity and the source of the underlying information. Mere production and marking of a document as exhibited by the Court does not amount to proof of its contents. Its execution has to be proved by leading substantive evidence, that is, by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’. [See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745] We may refer to a few judicial pronouncements of this Court in this regard:
8.1. This Court, in Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604, held that the entries contained in the school register are relevant and admissible but have no probative value unless the person who made the entry or provided the date of birth is examined. It was observed:
“14. 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 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 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. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. 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 the 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…. The courts have consistently held that the date of birth mentioned in the scholar’s register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined…”
(Emphasis Supplied)
This decision has been consistently followed by this Court in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551; Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133; Murugan v. State of T.N., (2011) 6 SCC 111; State of M.P. v. Munna, (2016) 1 SCC 696; C. Doddanarayana Reddy v. C. Jayarama Reddy, (2020) 4 SCC 659; and Manak Chand v. State of Haryana, 2023 SCC OnLine SC 1397.
8.2. A coordinate Bench of this Court in State of Chhattisgarh v. Lekhram, (2006) 5 SCC 736, through S.B. Sinha, J., clarified that though entries in school registers are admissible under Section 35 of the Evidence Act, their evidentiary value improves only when corroborated by oral testimony of persons who are aware of its content, such as parents or the person who made the entry at the time of admission. It held as under:
“12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect.
13…. The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive, but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix.”
8.3. Similarly, this Court in Satpal Singh v. State of Haryana, (2010) 8 SCC 714, stated that though a document may be admissible, but to determine whether the entry contained therein has any probative value, may still be required to be examined in the facts and circumstances of a particular case. It 26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283: (2006) 1 SCC (Cri) 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable 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.
XXX
28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.”
8.4. In Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209, this Court held that the entries made in the official record may be admissible under Section 35 of the 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. It was held as follows:
“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 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 belied 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….”
8.5. This Court, in Alamelu v. State, (2011) 2 SCC 385, while dealing with a similar factual matrix, held that the prosecution had failed to prove that the girl was a minor at the relevant date since the transfer certificate of a Government School showing age was not duly proved by witnesses. It observed as under:
“40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl’s date of birth was 15-6-1977. 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. 31-7-1993. 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 Evidence Act, 1872. 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. 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.
41. We may notice here that PW 1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention the girl’s age or date of birth. PW 2 was also examined on 9-8-1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. In her cross- examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth was noticed as 15-6-1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.”
(Emphasis supplied)
9. In the attending facts, we find that the evidentiary value of Ex.P11 is significantly undermined in the absence of corroborating material. We say so for the following reasons:
(i) PW-13, who is the Headmaster of Zilla Parishad High School, Chandanapur, Peddapalli District (erstwhile Karimnagar District), stated that the victim studied in his school from 2007 to 2013, i.e., 6th Class to 10th Class and that the Admission Register records her date of birth as 3rd November 1996. However, in his cross-examination, he admitted that had no personal knowledge as to the source or basis on which the date of birth was recorded therein or if the recorded date of birth was correct or not. The relevant part of his testimony is extracted hereunder:
“…In our school there is not clerk to maintain records. I did not produce any certificate pertaining to earlier school I, In which P.W.3 studies up to 5th Class. There must be basis for entering date of birth of a student in our school such as her earlier school record. I do not have personal knowledge as to what record was produced by parents of P.W. 3 as basis to enter her date of birth in our school as I was not Head Master in 2007.
I cannot say in which school P.W.3 studied up to 5th Class. In the nominal roll register of our school, the signature of P.W.3 was obtained. I do not have personal knowledge whether the said date of birth of P.W.3 was correct or not and I am giving evidence only on the basis of record.”
(Emphasis Supplied)
(ii) The prosecution has failed to examine the person who had made the entry in the Admission Register to ascertain on what basis such an entry was made. More so, the entry in respect of the date of birth of the victim in the primary school register, i.e., 1st Class to 5th Class, has not been produced and proved before the Courts below to verify the age s per its records. It is also not possible to ascertain from the records as to whether the date of birth was provided by the parents or simply entered at the behest of another party, without verification, at the time of admission to Zilla Parishad High School.
(ii) The testimonies of PW-1, PW-2 and PW-3 are also telling that none of them mentioned the victim’s age with specificity. There is no reference to Ex.P11, and no attempt was made by the prosecution to adduce corroborative testimony regarding the victim’s date of birth from her family members.
Thus, while examining the issue at hand, on the anvil of the principles elucidated above, it is essential to notice that the prosecution has failed to toe the line of legal requisites. There is nothing on record to corroborate the date of birth of the victim as recorded in the birth certificate (Ex.P11) issued by the school. Therefore, it cannot be relied upon to definitely determine the age of the victim and held with certainty that the victim was below sixteen/eighteen years of age.
6. Learned counsel for the appellant has further relied on the law laid down by the Delhi High Court in Rasul Azam Vs. The State (Govt. of NCT) Delhi and others in Criminal Appeal No. 537 of 2023 decided on 3.11.2025 and he relied on paragraph nos. 8, 9 and 10 as follows:-
?8. Pertinently, POCSO Act does not prescribe any mechanism or procedure for adjudication of the age of the child victim. However, Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter, JJ Act‘) provides for a method for determination of age of a person who is stated to be a child. Section 94 of JJ Act reads as follows:
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 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.
9. The Supreme Court in the case of Jarnail Singh v. State of Haryana MANU/SC/0626/2013: 2013:INSC: 378: 2013 (7) SCC 263, has held that Rule 12 ol the Juvenile Justice (Care and Protection of Children) Rules, 2007, though meant for child in conflict with law, would be equally applicable to determine the age of a child, who is a victim of crime. The Apex Court opined that there was not much difference between them when it comes to the issue of minority. The relevant observations are reproduced hereunder:
“23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6….”
Since the JJ Act replaced the Juvenile Justice (Care and Protection of Children) Rules, 2007, therefore, Section 94 of the JJ Act, 2015 will be relevant and applicable in the present case which is pari materia with Rule 12 of the J) Rules.
10. A reading of Section 94 makes it evident 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 documents that 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. (cf: P Yuvaprakash (Supra)?.
7. Learned counsel for the appellant has further submitted that a false and fabricated FIR has been lodged by moving an application under Section 156(3) Cr.P.C. The criminal trial has commenced against four accused person namely, Ganesh, Govind, Geeta and Barfi alias Barfa. and all these three accused except appellant had been acquitted by the learned trial court. There has been no government appeal filed against them. The appellant is innocent and the impugned judgment and order dated 20.4.2024, passed by learned trial court is liable to be set aside against the appellant. He is entitled to be acquitted of all the charges. The appeal is entitled to be allowed.
8. Learned AGA for the State has opposed the appeal and has submitted that the appellant has committed serious and heinous offence and the prosecution has proved its case beyond reasonable doubt. The criminal appeal is liable to be dismissed.
9. The genesis of the present case have been initiated on the basis of Ext. Ka-1 which is an application under Section 156(3) Cr.P.C. dated 1.12.2015 which is filed by complainant/Sadhu, who is father of the victim. He has filed the application against Ganesh, Govind, Geeta. He alleged that the incident is of 20.8.2015. The offence was registered under section 363, 366, 376, 323 IPC and 3/4 of POCSO Act. The name of the witnesses have been mentioned as Sadhu son of Sikandar, victim, Deena Nath and Radhey. It has been stated in the said complaint that his minor daughter, whose date of birth, as per the records of Purva Prathamik Vidyalaya, Paterengwa (Year 2013), is 12.08.1999, and according to the said record, her age is 16 years and 8 days. She had gone to the house of her sister, resident of Tarkulwa Tiwari, Police Station Shyamdeurwa, District Maharajganj. The said minor daughter of the complainant was enticed and allured by Ganesh, son of Govind, who is a person of immoral character, by giving various inducements and temptations, and thereby took away the his minor daughter under his influence. On 20.08.2015, at about 5:00 p.m., while taking her on a motorcycle from Tarkulwa Tiwari towards the western side of Sohrauna, he was seen by Dinanath, son of Dukhran and Radhey, son of Dukhran, and other villagers. When his minor daughter did not return home till late in the night, the aforesaid persons informed the him over the telephone. On the following morning, he reached Tarkulwa Tiwari, where a Panchayat was convened. In the Panchayat, it was decided that since Ganesh had taken the girl away, Ganesh himself would keep her. However, on 23.11.2015, at about 4:00 p.m., the applicant’s minor daughter was beaten by Ganesh and abandoned outside the village, Paterengwa, Police Station Kotwali, District Maharajganj. The minor daughter returned to home in weeping condition and informed the complainant that on the pretext of marrying her, Ganesh, with the assistance of his parents, had taken her away and kept her at an unknown place, where he used to make physical relations with her. One day, the said Ganesh asked her to establish physical relations with one of his friends. She refused and stated that she would make a complaint to the police. Upon this, the said Ganesh said that I have enticed you away. I am telling you to do as I say; otherwise I will leave you at your home. Now, even your parents will not keep you. Even thereafter, when she did not agree to the unlawful demand of the said Ganesh, the said Ganesh beaten her and left her outside her village, Paterengwa, Police Station Kotwali, District Maharajganj. The information regarding the incident was given at Police Station Shyamdeurwa, but the police of Police Station Shyamdeurwa, being under the influence of the accused persons, are not taking any action. They are merely giving false assurances and making the applicant run from place to place. Having become disappointed with the police, on 3.12.2015, the applicant sent information by registered post to the Superintendent of Police, Maharajganj, but despite that no action was taken. Finding that no action was being taken even thereafter, the applicant is submitting this information.
10. On that basis, a case was registered and charge sheet was submitted against various accused persons, namely, Ganesh, Govind, Geeta and Barfi alias Barfa under Section 363, 366, 376 IPC. The charge sheet under Section 363, 366, 376, 323 IPC and of POCSO Act was filed against appellant Ganesh.
11. The FIR is registered which is Ext. Ka-1 under Section 363, 366, 323 IPC and 3 /4 of POCSO Act against, (1) Ganesh, (2) Govind and (3) Geeta.
12. The statement of victim has been recorded under Section 164 Cr.P.C by the Judicial Magistrate on 4.8.2016 which is Ext. Ka-2 and duly verified by PW-2/victim herself. She has made her statement under Section 164 Cr.P.C. in presence of ladies constable Chandralekha. The victim has recorded her statement on her own free will. The victim has recorded her statement that my name is (x). I have studied upto class IX. My age is 17 years. I know, Ganesh, Govind and Geeta. Ganesh has enticed me on allurement of marriage. Ganesh is the resident of matrimonial house of my sister. I used to visit to matrimonial house of my sister and he known to me. Ganesh took me to Ludhiana. Ganesh has forcefully made physical relationship with me. He kept me around four month at Ludhiana and continued made physical relationship. After one month thereafter, he had left myself to the house of his Mausi. One day, he had beaten me and left me outside of the village. After returning to home, I had told all the story to my brother. The case was registered by my father.
13. There is contradiction in the statement under Section 164 Cr.P.C. where she has stated that she has narrated the entire incident to his brother, whereas in the complaint which is lodged by father that she had narrated the entire story to him.
14. Ext. Ka-3 is the medical examination of the victim dated 8.7.2016, where she has simply and on her own responsibility refused about any internal examination. The age certificate issued by the CMO, district Maharajganj dated 3.8.2016 of the victim that as per X-ray report and examination dated 29.7.2016, her age is approximately 19 years which is Ext. Ka-4.
15. Ext. Ka-5 is mark-sheet of the victim where date of birth is mentioned as 12.8.1999 which is of class VIII and in the register, her date of birth is mentioned as 12.8.1999.
16. The charges have been framed against Barfi alias Barfa under Section 368 IPC and 16/17 of POCSO Act. The charges have been framed against accused Ganesh under Section 363, 366, 376, 323 IPC and of POCSO Act. The charges have been framed against Govind and Geeta under Section 504, 506 IPC.
17. After complete trial by the learned trial court, the accused Govind, Geeta and Smt. Barfi alias Barfa have been acquitted of all the charges framed against them. The appellant/Ganesh was convicted and sentenced and he preferred the present criminal appeal before this Court.
18. PW-1, Sadhu has been examined by the prosecution before the learned trial court on 17.1.2020. He deposed that the incident is of prior to four years ago. The incident was occurred around 5.00 pm. He further deposed that my minor daughter aged 16 years had went to the house of her sister at village Tarkuluwas Tiwari, P.S. Shyamdeurwa, district Maharajganj. Ganesh son of Govind, who is a man of immoral character, resident of that village has enticed away my minor daughter by alluring her. He taken her on a motorcycle around 5.00 p.m from village Tarkuluwa Tiwari. When my daughter did not return till late night, then I had been informed on phone. On the next day, there was a Panchayat took place at village Tarkuluwa Tiwary that Ganesh has enticed her, hence he should keep her. After three month of the incident, around 4.00 p.m, my daughter was beaten and left near the village and he ran away. My daughter returned to my home and narrated the story that Ganesh has enticed away me on allurement of marriage. He has kept at unknown place and made physical relationship with myself. Whereas, in her statement under Section 164 Cr.P.C. she had stated that the appellant took her to Ludhiana and made physical relationship at Ludhiana for consistently four month. One day, he insisted me to make physical relation with my friend, On my refusal, the appellant threatened that I had enticed away you and you should have to do what I am saying. When she did not oblige desire of Ganesh, then Ganesh had beaten to her and left at her house. I had made complaint to the police station, but no case was registered then I send application to S.P., Maharajganj and when no action was taken, I made the application before the court and the case was registered. Parents of Ganesh had also assisted him in enticing of my daughter. He has verified said complaint which is Ext. Ka-1.
19. In his cross-examination, PW-1 has deposed that I have seven children. This is my daughter of number three. The elder son?s name is Mahesh. In his cross-examination, he further deposed that on 25.8.2015, the court marriage of my daughter and Ganesh was solemnized by my son Mahesh in which Mahesh is witness, I have no knowledge of it. Ganesh has never visited to my house. When the incident was occurred, I could not able tell, because, about four years had passed. Ganesh has not took my daughter from her school, but he took her from the house of her sister. When my daughter returned to my home, then I have taken her to Tarkuluwa village. He further deposed that I have not went with my daughter. Then I have went to the house of Ganesh for marriage of my daughter. Ganesh has enticed, hence Ganesh should marry her. Myself and Ganesh are not belonged to same caste and Biradari. When I had went to the house of appellant for marriage, at that time, her age was 16 years. What was the age of Ganesh, I do not know. The family members of Ganesh was not ready for marriage, then I had lodged case against them. I had no knowledge, when my daughter born. The age of 16 years which I had mentioned in the complaint, it has been written as per my guess. I had married my daughter two years ago. My daughter had went with Ganesh. This information has been provided to me by Deenanath and Radhey. Both are resident of Tarkuluwa Tiwary. Both are my relative. I could not tell when they have provided information to me. I have never visited to village Tarkuluwa immediately on getting information. After three month, when my daughter came to my house, I had given information to S.P. and on his order, the case was registered. The Inspector has not recorded any of my statement. It is belied to state that my son Mahesh has performed marriage of my minor daughter before the court marriage officer with minor Ganesh before Special Marriage Officer and it was rejected due to age of minority. Thereafter became annoyed and got registered this case against them.
20. PW-2-victim has deposed before the learned trial court on 12.2.2020. In her examination-in-chief, she herself has deposed that I have studied upto class 8. After completion of my class 8, my name was registered in class IX in Rajkiya Inter College, Maharajganj. At the time of incident, I was at the house of my sister at Tarkuluwa Tiwari. I know Ganesh. Ganesh is resident of Tarkuluwa Tiwari. Ganesh used to talk myself. He took myself on the motorcycle after allurement of marriage. Ganesh taken me to the house of his Mausi. Ganesh had made physical relationship with myself forcibly. When I refused it, then he used to beat me. He kept me for three months. After that he left me at outside of the village and ran away. I returned to my home and narrated the entire story at my home. My statement was recorded by lady Constable. My medical examination was conducted. My statement was also recorded before the Magistrate in Court. The statement of Section 164 Cr.P.C. was opened before her. She has identified her photograph and signature, she deposed that this is the statement which she has recorded before the Magistrate. She has stated that this statement was recorded by her own free will. No body has tutored her. He had not married to myself. I am not aware about my court marriage.
21. In the cross-examination, she deposed that I know Mahesh. He is my brother. My father name is Sadhu. How many sons and daughters are of my father, I do not know. I am fourth children of my father. The first children of my father is a girl. Her name is Balika. Thereafter, Nirala, Radhika, Kavita and Shobha. I have two brothers, one is Ganesh and another is Nagendra. No marriage of myself has been solemnized in Maharajganj before any Marriage Officer. I know accused Ganesh for the last 4-5 years. How many days prior I know Ganesh, I could not tell. Ganesh had visited to my village, it is not in my knowledge. The case is registered by my father.
22. She has deposed her age 23 years. Her examination-in-chief was recorded before the trial court on 12.2.2020. The incident is of 2015, hence her age is appeared to be 18 years. As per her medical examination, certificate issued by CMO, her age is determined as 19 years.
23. She has further deposed in her cross-examination that I have come to the court to record my evidence from home. Thereafter, told I came from my matrimonial home. I have married. Ganesh and myself are not of the same caste, I belong to different caste. My sister house is in village of Ganesh. I used to visit her house. I had never further visited to my sister?s house after the said incident. I am educated. What was the age of Ganesh at the time of incident, I do not know. I know my age. I had once visited to my sister?s house at the time of incident. It is not in my knowledge, how many prior I had visited to my sister?s house. Name of my brother is Mahesh. I had spent three months with Ganesh. When I went with Ganesh, at that time I was studying in class 9. I had not went with Ganesh with my consent. Ganesh had kept me at the home of his Mausi for about three month at Ludhiana. I had not made any complaint at Ludhiana. After three month, I had not visited with Ganesh to his House. He has left me at the crossing and fled away. On which crossing he left me, it is not in my knowledge. I had went to my parental house from there. When I reached to my parental house, it was night. I am not aware exact time. First, I had narrated the entire story to my brother.
24. It is contrary to the statement of PW-1, who is father of victim where he stated that after return of victim, she has narrated the entire story to him, whereas in her statement under Section 164 Cr.P.C., she has deposed that she narrated the entire story to his brother after reaching her home. She further deposed that prior to moving to Ludhiana, my father had not visited to village Tarkuluwa Tiwary for any compromise prior to lodging of FIR. The Police Inspector has recorded my statement. It is belied to state that prior to lodging of the case, my father has visited with a proposal of marriage to the house of Ganesh and on its refusal, he has lodged the case.
25. PW-3, Dr. Shalini Verma has recorded her statement on 11.11.2022 before the learned trial court. She has verified the medical report and stated that the victim has refused for her medical examination. The certificate issued on the basis of X-Ray by the C.M.O dated 3.8.2016, age of the victim is 19 years which is Ext. Ka-3 and the report of CMO is Ext. Ka-4. She was not ready for internal examination, hence no injury was seen.
26. As per statement of PW-2 herself and medical examination, certificate issued by CMO, her age is 18-19 years. The school certificate relied upon by the learned trial court is contrary to the provisions of Section 94 of JJ Act.
27. As discussed hereinabove, there is complete inconsistency in the statement of the complainant and the victim herself. The age of the victim as per medical test is 19 years. She has been resided with the appellant for a period of four months at Ludhiana. She did not raise any voice. She had went with the appellant on the motorcycle and when her father has got information, he went to the house of the appellant that he has enticed her daughter, so he should keep her. The proposal of marriage has been refused by the family members of the appellant. Thereafter, FIR has been lodged.
28. There has been no corroboration in the statement and story of the prosecution. The victim is major and consenting party. The prosecution is failed to prove its case beyond reasonable doubt.
29. In view of all details, evidences discussed herein above, this Court is of the opinion that the impugned judgment and order dated 20.4.2024, passed by the learned Special Judge, Exclusive Court (POCSO Act), Maharajganj, in Special Sessions Trial No. 475 of 2016 (State Vs. Ganesh and others), arising out of case crime No. 198 of 2016, under Section 363, 366, 376, 323, 368, 506 and 504 IP/C and Section 16/17 and 3/ 4of POCSO Act, Police Station Shyam Deurwa, District Maharajganj, is liable to be set aside and it is, hereby, set aside. The appellant-Ganesh is hereby acquitted of all the charges. The appellant is in jail. He shall be released forthwith in the aforesaid case, if not wanted in any other case. His bail bonds and sureties are hereby discharged.
30. The criminal appeal is hereby allowed.
(Abdul Shahid,J.)
July 30, 2026
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