1 2025:CGHC:782 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 670 of 200 6 • Lokeshwar Yadav S/o Jainlal Yadav aged about 19 years, Occupation – Labour, R/o Village – Nagabuda, Tehsil & Police Station – Gariyaband, District – Raipur, Chhattisgarh. ---- Appellant Versus • State of Chhattisgarh, through: the District Magistrate, District – Raipur, Chhattisgarh. ---- Respondent For Appellant : Mr. Shivendu Pandya, Advocate. For Respondent/State : Mr. Pankaj Singh, P.L. Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (06 .0 1 .202 5 ) 1 The present appeal arises out of the impugned judgment of conviction and order of sentence dated 13.07.2006 passed by the learned 1st Additional Sessions Judge, Raipur, Link Court Gariyaband, District - Raipur (C.G.), in S.T. No. 130/2006 whereby, the learned Session Judge, convicted and sentenced the appellant as under:- Conviction Sentence U/s 376 of IPC R.I. for 10 years and fine of Rs. 2,000/-, in default of payment of fine amount additional R.I. for 2 months. Digitally signed by HEERA LAL SAHU Date: 2025.01.07 17:25:50 +0530 2 U/s 506 Part-IIof IPC R.I. for 1 year and fine of Rs. 1,000/-, in default of payment of fine amount additional R.I. for 1 month. (Both the sentences were directed to run concurrently). 2 The prosecution story, in brief, is that the prosecutrix resided with her parents in the village Nagabuda and she was a student in 9th standard. It is alleged that on the date of the incident i.e. 01.01.2006 at about 3:00 pm, the prosecutrix came to the forest area to answer nature’s call which is situated near the house of the prosecutrix. After answering the nature’s call when she was returning to her house, at that time, the appellant/accused came there caught hold of her and took away her by dragging her at the incident place towards the forest area. When the accused/appellant was taking away the prosecutrix she tried to escape herself and tried to cry but the accused pressed her mouth and did not leave her, thereafter, the accused/appellant committed forcibly sexual intercourse with the prosecutrix. Further, it is alleged that after committing rape by the accused/appellant threatened for life. After that, the prosecutrix came to her house and informed her mother, who informed her husband regarding the incident. Thereafter, on the next day i.e. 02.01.2006, the prosecutrix lodged a report/FIR vide Ex. P-2 at police station – Gariyaband. During the investigation, the prosecutrix was medically examined and panchnama was prepared. Properties were seized and spot map was prepared. The statements of the witnesses were recorded and on completion of the investigation charge sheet was filed against the appellant. 3 So as to hold the appellant guilty, the prosecution has examined as many as 13 witnesses and exhibited 21 3 documents. The statement of the appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. 4 After hearing the parties, vide impugned judgment of conviction and order of sentence dated 13.07.2006, learned Sessions Judge has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal. 5 Learned counsel for the appellant submits that the learned trial Court has failed to consider the ingredients of the offence, which have not been proved beyond reasonable doubt. He further submits that the date of birth of the prosecutrix is not sustainable in the Court on the basis of a school certificate because of school certificate is not conclusive proof of evidence in the eye of the law. The prosecution is unable to prove the age of the prosecutrix, therefore, it cannot said that the prosecutrix is below 16 years old at the time of the incident on the basis of a school certificate. He next submits that Dr. Bara (PW-13) has given the medical examination report of the prosecutrix and on one hand, she stated in her medical report that the hymen of the prosecutrix was not ruptured and on the other hand, she stated in her Court stated that the hymen of the prosecutrix was ruptured. The credibility of the statement of the doctor is not tenable in the eye of the law. He lastly submits that the appellant has been falsely implicated in the case because of enmity. Hence, considering the material available on record, the appeal is liable to be allowed and the appellant is entitled to be acquitted. 6 Per contra, learned counsel appearing for the State, 4 supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant. 7 Heard learned counsel for the parties and perused the material on record including the impugned judgment. 8 The incident is said to have taken place on 01.01.2006 which was reported on the second day i.e. 02.01.2006 by the prosecutrix (PW-2) herself vide Ex.P-2. 9 Dr. Smt. B. Bara (PW-13) has stated that on 03.01.2006 she had conducted medical examination of the prosecutrix/complainant and gave her report vide Ex.P-20. According to medical report Ex.P-20, (1) There were no marks of injury on the external part of the genital. (2) Zora in Libya had mild swelling and redness. (3) The hymen was torn and two fingers were entering it with difficulty. (4) And on entering the fingers, the prosecutrix was feeling pain. (5) On per speculum examination, no injury marks were found on the internal part. Her cervix was normal. It was the time of menstruation at that time. (6) The size of the uterus was normal. 10 Dr. Bara (PW-13) has opined that there were clear signs of sexual intercourse with the prosecutrix (PW-2). She admitted in her cross-examination that the report does not mention how long ago the sexual intercourse took place. She prepared two slides and sent them for chemical examination. However, it is noteworthy that no chemical test report has been presented in this case. 11 The prosecutrix (PW-2) has stated in her Court statement that when she had gone out to attend the nature’s call, the appellant caught hold of her hand and dragged her to a bush and raped her forcefully and when she tried to scream, he gagged her mouth and threatened to kill her if 5 she told her parents. Later, she came home and told the incident to her parents and then went to the police station and filed a written report (Exhibit P-2), then the police got her medically examined and the seizure of her school marksheet and clothes was made. 12 The statement of the prosecutrix has been corroborated by her mother (PW-11) and father (PW-3) that the prosecutrix had told them that the appellant had forcefully raped her. 13 According to the argument of the appellant side, first of all, it has to be seen whether the prosecution has established that at the time of the incident, the prosecutrix/complainant was a minor girl below 16 years of age? 14 In this regard, it is noteworthy that neither the prosecutrix nor her parents were able to tell the date of birth of the prosecutrix (PW-2). In cross-examination, the prosecutrix (PW-2) has stated that her age is about 15 -15½ years. To prove her age, the only school mark sheet Article-A has been seized vide Ex.P-3. According to the Article-A certificate, the prosecutrix's date of birth is 02.05.1990. Thus, on the date of the incident i.e. 01.01.2006, her age was about 15 years and 08 months. 15 In order to prove the marksheet-Article-A, the prosecution has examined Principal Lakhanlal Yadav (PW-4) who was posted at the Government Higher Secondary School, Nagaguda at that time. On the basis of the records, he has stated that he has issued the Article-A certificate and admitted his signature. According to which, the date of birth of the prosecutrix is 02.05.1990. 16 The Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal 6 Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder :- “14. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. “14. …The date of birth mentioned in the scholar’s 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. 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. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to 7 the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 17 Hon’ble the Apex Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has held that:- “the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 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 prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case that 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.” 18 Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held that:- “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 date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in 8 the absence of the material on which the age was recorded.” 19 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. 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 v. Anand Purohit (1997) 4 SCC 24).” 20 The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:- “26. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the 9 prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. 34. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.” 21 It is noteworthy that the main source of information regarding the date of birth of a child is his/her parents. In this case, the father (PW-3) and mother (PW-11) have been unable to tell the date of birth of the prosecutrix/complainant. The school certificate Article A is also not of the primary school but of the higher secondary school and the documents on which this certificate of the complainant is based have not been produced before the Court. There is no clear evidence regarding who got her admitted in the school. There is also no clear evidence regarding who got the date of birth of the complainant registered. In such a situation, in the light of the above judgments, when Principal Lakhanlal Yadav (PW-4) has accepted that at the time of admission in his school, the date of birth is written on the basis of the transfer certificate and he gives admission on the basis of the mark sheet and transfer certificate, there is no need to get the date of birth written separately. In view of these facts, the 10 marksheet Article A loses its legal importance and in view of the evidence presented, this Court finds that the prosecution has failed to prove the fact that the prosecutrix was below 16 years of age on the date of the incident. 22 The second argument of the appellant side is that he has been falsely implicated due to enmity. In this regard, in the statement under Section 313 of the Code of Criminal Procedure, the appellant, denying the statements of witnesses contrary to him, has said that he used to work as a labourer at the father of the prosecutrix and on 01.01.2006 at 02.30 pm while demanding his wages, the father of the prosecutrix threatened him that if he asked for his wages for 03 years, he would implicate him in a case and did not pay his wages for 03 years and also abused and assaulted him and got a false report registered. 23 Considering the evidence adduced in support of the above argument, it is clear that the father of the prosecutrix himself (PW-3) has admitted that he is a mason and he is the one who pays the labourers. He has also admitted that the appellant is from his village. He has also admitted that on the date of the incident at about 02.30 p.m. the appellant had demanded money from him for drinking liquor but he did not mention this in his police statement. He has also admitted that his daughter prosecutrix Disha had gone to the field and when she was quite late in returning, he had questioned his daughter. Thus, the father (PW-3) has not clearly admitted that he had lodged a false report due to the dispute over the demand of money. But the prosecutrix herself (PW-2) has accepted in cross- examination that the appellant had lived with them in her house for about 03-04 years and was working for them, and in the new year i.e. on the date of the incident i.e. 11 01.01.2006, he came to demand his wages, and there was a dispute between the two as his father did not pay him his wages and due to this, there was enmity between them, due to which she had lodged the report. Thus, the prosecutrix herself has accepted the argument and suggestion of the appellant that she had lodged the report due to the dispute over the demand for wages. 24 The prosecutrix has also admitted that she did not inform anyone about the incident except her parents. The mother of the prosecutrix (PW-11) has admitted in her cross- examination that a meeting for compromise was held in the village regarding the incident which was also recorded in writing. She has also admitted that the appellant was working as a labourer with her husband for 03-04 years. She has also admitted that the information about the incident related to the prosecution case was not given to the village Panch, Sarpanch or Kotwar. She has also admitted that Kirtan and Sevaram were not given any information about the incident. Thus, it is clear that no information was given to anyone in the village except the parents of the prosecutrix regarding the said incident. Then it is not made clear about what the meeting and compromise was held between the two parties. From which it is reflected that there was a dispute between both the parties regarding the demand of wages and a report was lodged in this regard and the mother is saying that a meeting and compromise was reached in this regard. 25 Thus, keeping in view the above evidence, this Court finds that the prosecution case against the appellant has not been proved beyond reasonable doubt. The benefit of doubt should go to the appellant. 26 Hence, I am of the considered opinion that the appellant is 12 entitled for acquittal on the basis of the principle of benefit of doubt. The conviction of the appellant for the aforesaid offences is hereby set aside and he is acquitted of the said charge. 27 Accordingly, this Criminal Appeal is allowed. 28 Appellant is on bail. He need not to surrender in this case. Fine, if any, deposited by the appellant be refunded to him. His bail bonds shall continue for a further period of 6 months as per requirement of Section 437-A of the Cr.P.C. 29 Record of the trial Court along with a copy of this judgment be sent forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) JUDGE H.L. Sahu