1 2025:CGHC:26935 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 105 of 2007  Chain Singh Sahu, S/o Pyare Lal Sahu, aged about 22 years, R/o Sahu Para, Ramnagar, Supela Bhilai, District Durg (C.G.) ---- Appellant Versus  State of Chhattisgarh Through : S.H.O., P.S. Supela, District Durg (C.G.) ---- Respondent For Appellant. - Mr. Jitendra Gupta, Advocate. For Respondent - Mr. Ajay Pandey, Govt. Advocate. Hon'ble Smt. Justice Rajani Dubey Judgment On Board 23/06/2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 19.01.2007 passed by the 11th Additional Sessions Judge (F.T.C.), Durg in Sessions Trial No.236/2005 convicting the accused/appellant under Sections 363, 366 and 376 (i) of the IPC & sentencing him to undergo R.I. for 03 years with fine of Rs.500/-, R.I. for 07 2 years with fine of Rs.5000/- and R.I. for 07 years with fine of Rs.5000/- respectively, with default stipulations. All the sentences are directed to run consequently. 2. As per the prosecution case, on 07.01.2005 at around 7.00 pm, when the Prosecutrix (PW-2) was going to her aunt’s (Buwa) house on bicycle, the accused/appellant and his friend met her on the way, intercepted her and said that he wanted to marry her and asked her to accompany him but the Prosecutrix (PW-2) refused to accompany him, whereupon he threatened her that if she did not marry him, he would kill her then the Prosecutrix (PW-2) due to fear went with him. The accused/appellant and his friend took her to a ruin and the friend of accused/appellant stayed outside of ruin. The accused/appellant started to misbehave with her which was objected by the Prosecutrix but the accused/appellant threatened her to kill and then removed her clothes and committed forceful intercourse with her and then threw her clothes far away and went from there. After some time, the accused/appellant came back and gave her another set of clothes to wear. The trio remained whole night in the ruins and on second day at around 8.00 AM, the accused/appellant and his friend took the Prosecutrix to Bilaspur in bus where they kept the Prosecutrix in relative’s house and went from there saying that he would return after 3 15 days and perform marriage with her. The friend of the accused/appellant stayed there and locked the Prosecutrix in one room. Next day, the Prosecutrix ran away from there on the pretext of going to answer the call of nature. The accused/appellant and his friend being involved in elopement, eloped her by luring with marriage and forcefully had sexual intercourse, report of which was made by the Prosecutrix in the police station Supela and FIR was registered against the accused/appellant and his friend under Sections 363, 366, 376, 34 of IPC under Ex.P-2. Thereafter, the Prosecutrix was produced before the Sub Divisional Magistrate, Chhawni, District Durg vide Ex.P-3 and after obtaining consent of Prosecutrix and her mother for medical examination under Ex.P-4 and P-5 respectively, she was sent to Government Hospital, Supela under Ex.P- 12/A, where she was examined by Dr. (Smt.) Kavita Shrivas (PW-14) who gave her report under Ex.P-12 and no injury was noticed over vulva and inner parts of thigh & no opinion regarding recent sexual intercourse was given. The doctor (PW-14) referred the Prosecutrix to District Hospital, Durg for further opinion to Gynecologist and advice for x-ray for confirmation of age. Her ossification test was conducted vide Ex.P-10 by Dr. A.K. Sahu (PW/10) and according to his report, the radiological age of the Prosecutrix was 16 years. 4 The accused/appellant was also medically examined vide Ex.P-9 and was found to be capable of performing sexual intercourse. 3. After investigation, charge sheet was filed against the accused/appellant under Sections 363, 366, 376, 34, 342 of IPC and the learned trial Court framed charges against the accused/appellant under Sections 363 in alternate 363/34, 366 in alternate 366/34, 376(1) and 342 of IPC. The other co-accused was reported to be absconded. 4. So as to hold the accused/appellant guilty, the prosecution examined as many as 16 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that the learned trial Court committed grave error of fact and law and has thus caused miscarriage of justice to the appellant. There is inordinate delay of about 24 hours in lodging the F.I.R. and no plausible explanation has been offered in this regard. 5 The fact of deliberation with the neighbourers in the matter as to how report was made is clear from para 12 of cross- examination of Prosecutrix (PW-12) and this was the cause for delay in FIR. This falsified the statement of the father of Prosecutrix (PW-3) in para 6 of his cross-examination. Thus, the FIR was concocted and false. Learned counsel further submits that as per the mark list of school, the date of birth of Prosecutrix (PW-2) is 14.08.1989 and the date was recorded as per the doctor’s certificate of Vishakhapatnam but the said certificate was not made part of the record, which shows that the Prosecutrix was major. There are contradictions in the statement of material witnesses which makes the prosecution story weak. Further, the certificate of hospital was not produced and admission register which was primary evidence in respect of the date of birth, was also not produced. That apart, the doctor who conducted the ossification test of the Prosecutrix opined that the age of the Prosecutrix was 16 years, which was held as axiomatic by the trial Court forgetting that a margin of +2 to 3 years on either side has to be given to that age. The benefit of doubt must be extended to the appellant and thus it can safely be held that the Prosecutrix was 18 years of age at the time of incident. Learned counsel also submits that it is evident from the testimony of Prosecutrix (PW-2) that she accompanied 6 the accused/appellant of her own without offering any protest or resistance and came to the disposal of the accused/appellant, and her admission that she would not make the report against the accused/appellant had the marriage been consummated but the parents did not give their consent which also points towards her consent. Learned counsel also submits that the Prosecutrix was in love with the appellant, she wrote a letter (Ex.D-1) to the appellant which bears her signature, she witnesses movie with the appellant, which unerringly points towards that she was not kidnapped nor she was intimidated any time and all that suggest is that she was a consenting party to the act of the appellant. Thus, considering all the aforesaid circumstances, the appeal deserves to be allowed setting aside the impugned judgment. 7. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance law and there is no infirmity in the same. 8. I have heard learned counsel for the parties and perused the material available on record. 9. It is clear from the record of the learned trial Court that the learned trial Court framed charges against the accused/appellant under Sections 363 in alternate 363 read 7 with 34, 366 in alternate 366 read with 34, 376(1) and 342 of IPC, and after appreciation of oral and documentary evidence, the learned trial Court convicted the accused/appellant under Sections 363, 366 and 376 (I) of the IPC. 10. The question which arises for consideration before this Court is whether the Prosecutrix on the date of incident was minor ? 11. According to the prosecution, the Prosecutrix (PW-2), at the time of incident, was below 16 years of age. 12. The Prosecutrix (PW-2), in para 5 of her cross-examination, has stated that at the time of incident, she was studying in class 11th and at the time of deposition she was studying in Class 12 and in para 13, she has stated that her date of birth is 14.08.1989. 13. PW-3 is the father of Prosecutrix, who has deposed in para 6 of his cross-examination that he did not remember as to who had gone with his daughter to school for admission. His daughter was born at Vishakhapatnam and she was admitted in school on the basis of certificate given by the doctor of Vishakhapatnam. Though this witness has stated that he remember the date of birth of his both children but he did not spell about the date of birth of his daughter (PW- 2). This witness also went on to state that the police had 8 seized mark list of prosecutirix under Ex.P-6. 14. The prosecution, in order to ascertain the age of the Prosecutrix (PW-2), sent her to Govt. hospital for x-ray, which was conducted by Dr. A.K. Sahu (PW-10), who gave his report under Ex.P-10 and opined that the age of the Prosecutrix was about 16 years but this witness has admitted this suggestion of defence that there could be variation of 02 years on either side. 15. The prosecution, in order to establish the sanctity of mark list of Prosecutrix on which her date of birth was written as 14.08.1989, had to examine the Principal or teacher of the particular school, but they have failed to do so. Thus, in absence of examination of Principal or Teacher, it would not be safe for this Court to rely upon such document. That apart, the prosecution has also not filed birth certificate of the Prosecutrix or copy of school admission register of the Prosecutrix to corroborate the factum of date of birth of the Prosecutrix. In this case, though the mark list of the Prosecutrix discloses the date of birth of the Prosecutrix as 14.08.1989 but in the absence of any material to show as to on what basis such entry was made, it is rendered wholly meaningless. It was the bounden duty of the prosecution to prove this fact by examining the author who has entered such date of birth but all this has not been done. Even the 9 parents of the Prosecutrix did not spell about the date of birth of the Prosecutrix. It is settled in law that only on the basis of date of birth of the Prosecutrix on mark list or the school admission register, no inference can be drawn regarding age of the Prosecutrix unless the same is corroborated by the substantive piece of evidence. Further, the radiological age of the Prosecutrix (PW-2) was stated by the doctor as 16 years but he has admitted that there is 02 years variation on either side. 16. The Hon’ble Apex court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment as under :- “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. 10 48. 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. held as follows :- “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 party 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 11 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 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.” 17. In the light of aforesaid judgment of Hon’ble Apex Court in Alamelu (supra), this Court finds that apart from statement of Prosecutrix (PW-2) in para 13 of her cross-examination stating her date of birth as 14.08.1989 in her mark list, there is no clinching and legally admissible evidence on record to prove that the Prosecutrix, on the date of incident, was below 18 years of age. In absence of any incriminating evidence regarding date of birth of the Prosecutrix (PW-2), it would be very difficult for this Court to arrive at finding that the Prosecutrix was minor at the time of incident. Thus, this Court set aside the finding of the learned trial Court holding the Prosecutrix to be minor. 18. It is apparent from the statement of Prosecutrix (PW-2) that when she was going to her aunt’s (Buwa) house, the accused/appellant and his friend intercepted her and asked her to accompany accused/appellant, which was denied by her but when the accused/appellant threatened her then she 12 accompanied him to ruin where the accused/appellant committed sexual intercourse with her on the pretext of marriage. Next day, the accused/appellant took her to power house and then to Bilaspur in bus, where she stayed in a room for 2-3 days and thereafter she ran away from there on the pretext of answering the call of nature. This witness, in her cross-examination, has admitted that she and the accused/appellant were neighbour and both of them were in acquaintance and do talk about love and romance. She has further admitted that due to her love with the accused/appellant she did not get her photograph taken with him and not written any love letter but she admitted the signature on love letter (Ex.D-1) written by her. She has also admitted that her family members were not ready for their marriage because both of them belong to different castes. She has also admitted that had their parents been ready for their marriage, they would settle their household and would not have lodged the report. 19. The aforesaid testimony of Prosecutrix (PW-2) clearly goes to show that while accompanying the accused/appellant to ruin and then to Bilaspur, the Prosecutrix must have had the sufficient opportunity to make a disclosure of her being taken away and subjected to sexual intercourse by the accused/appellant and during all this long period they 13 enjoyed physical relationship without any protest from her side. Further, the conduct of the Prosecutrix in not resisting the act of the accused and submitting herself to his disposal speaks in volumes regarding her clear cut consent but the learned trial Court did not appreciate this fact and recorded perverse finding. In these circumstances, the appellant is definitely entitled to be acquitted of the charges leveled against him by extending him benefit of doubt. 20. In the result, the appeal is allowed. Conviction of the accused/appellant under Sections 363, 366 and 376 (i) of the IPC and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charges by extending him benefit of doubt. 21. The 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 provision of Section 437-A of Cr.P.C. (new Section 481 of BNSS). 22. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE