1 2025:CGHC:25892 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 486 of 2008 1 - Smt.Geeta Bai, W/o Shri Ravi Kumar, aged about 25 years, R/o Village Damkhancha, Urga, Kotwali Korba and Village Taldevri, Jaijaipur, Sakti, District Janjgir-Champa, presently residing at Amraiyapara, Korba, District Korba (C.G.) Appellant versus 1 - State Of Chhattisgarh through the Station House Officer, Kotwali, Korba, District Korba (C.G.) Respondent For Appellant : Ms. Reena Singh, Advocate through Legal Aid For Respondent(s) : Mr. Devesh Kela, PL Hon’ble Smt. Justice Rajani Dubey Judgment on Board 19/06/2025 1. Since no one appears on behalf of the appellant, therefore, Ms. Reena Singh, Advocate is appointed through legal aid to contest the present case. The Secretary, Legal Aid Services Committee is directed to issue appointment order in this behalf in favour of Ms. Reena Singh, Advocate. Digitally signed by RAMAKANT NIRALA 2 2. The present appeal is directed against the judgment of conviction and order of sentence dated 04.04.2008 passed by the learned 2nd Additional Session Judge (FTC), Korba (C.G.) in Session Trial No.07/2007, whereby the appellant has been convicted under Section 366 of IPC and sentenced to undergo RI for 3 years with default stipulations. 3. The prosecution case, in brief, is that the applicant was involved in commission of abducting or inducing the prosecutrix, aged about 15 years along with the co-accused Ashwani and Ravi Kumar. After abducting the prosecutrix, the co-accused Ashwani Kumar married with her in a temple of Village Chandrapur. The elder sister of the Prosecutrix lodged a missing report against unknown person at police Station Kotwali, Korba, thereafter she was found in the possession of the accused persons. Thereafter a case was registered against the accused persons. After completion of investigation, the charge sheet was filed against the appellant before the Magistrate concerned. 4. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court has totally ignored the defence version, hence the appreciation appears biased. The learned Trial Court has totally ignored the infirmities which had come in the testimonies of the prosecution witness in the form of 3 material omissions and contradictions. The learned Trial Court has failed to consider the fact that the FIR was lodged in form of missing report. The learned Trial Court has failed to see that there was love affair between the prosecutrix and co-accused Ashwani. The learned Trial Court has also failed to consider the fact that the Prosecutrix is aged about 18 years. The learned Trial Court has also failed to consider the opinion of doctor. Therefore, the impugned judgment is liable to be set aside. 5. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant, as such no interference is called for. Therefore, the appeal deserves to be dismissed. 6. Heard learned counsel for the parties and perused the material available on record. 7. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 363 of IPC against the appellant and after appreciation of oral and documentary evidence available on record, the learned Trial Court convicted the appellant under Section 366 of IPC and sentenced her to undergo RI for 3 years. 8. As per the prosecution, the prosecutrix (PW-2) was aged about 15 years. Pramod Singh Paikara (PW-11), Head Master, Primary School Damkhancha stated that as per admission register, date 4 of birth of the prosecutrix is 10.07.1990. She was admitted on 24.07.2001 in school, but he admitted that entry was not made by him. In the cross-examination, he admitted that on what basis date of birth was mentioned, he does not know. No other certificate regarding the death of birth of the prosecutrix was produced by the prosecution. 9. 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. 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 5 minor. A court of law for the purpose of determining the age of a party to 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 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.” 10. In view of the above principle, it is clear that the prosecution has failed to prove this fact that the prosecutrix was below 18 years of age, but the learned Trial Court did not consider the same properly and wrongly found that the prosecutrix was below 18 years of age. 11. The prosecutrix (PW-2) admitted in para 9 of her cross- examination that the appellant was not taking her by snatching her hands. She also admitted that the appellant did not take her and she also admitted that the appellant Geeta did not threaten her. She also admitted in para 10 that while sitting in truck, she did not raise any alarm or told anybody that she was taken forcefully. She also admitted that there were lots of people in the way, but she did not raise any alarm. In para 11, she again admitted that when she sat in truck again while going to Janjgir, then also she did not raise any alarm. She also admitted that she did not tell in the house of her sister-in-law that she was taken forcefully and when she stayed at her friend’s house, then also she did not tell anybody about the same. In para 12, she 6 admitted that she was out of the house for one week and stayed in the house/hut of the co-accused Ashwani where also lots of people were, but she did not raise any alarm or told anybody that she was taken forcefully. The conduct of the prosecutrix shows that she is consenting party to the act of the appellant and she went with the appellant on her own will, but the learned Trial Court did not appreciate all these facts and gave wrong finding that the prosecutrix is below 18 years of age and accordingly convicted the appellant under Section 366 of IPC. The finding recorded by the learned Trial Court is not based on the proper appreciation of evidence available on record as such the same is not sustainable. 12. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Section 366 of IPC. 13. The appellant is reported to be on bail. 14. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the Court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 15. The Trial Court’s record along with the copy of this judgment be 7 sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Rajani Dubey Judge Nirala