1 2025:CGHC:29854 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 771 of 2007 Dinesh Rajwar, S/o Shri Sarju, aged about 25 years, R/o Village- Turna, Police Station- Darima, District- Surguja (C.G.) ... Appellant versus State of Chhattisgarh, through Police Station- A.JA.K., Ambikapur, District- Surguja (C.G.) ... Respondent(s) _____________________________________________________________ For Appellant : Mr. Aman Upadhyay, Advocate. For State : Ms. Nandkumari Kashyap, Panel Lawyer. _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey Judgment on Board 02.07.2025 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 22.08.2007 passed by learned Special Judge, SC & ST Act (Prevention of Atrocities) Act, 1989 in Special Sessions Trial No. 61/2005, Sessions Division- Surguja Place- Ambikapur (C.G.), wherein the said Court convicted the appellant and sentenced him as under :- Digitally signed by AMIT PATEL 2 Conviction Sentence Under Section 376 (1) of IPC R.I. for 07 years and fine of Rs. 100/-, in default of payment of fine, to undergo additional R.I. for one month. Under Section 363 of IPC R.I. for 03 years and fine of Rs. 100/-, in default of payment of fine, to undergo additional R.I. for one month. Under Section 366 of IPC R.I. for 05 years and fine of Rs. 100/-, in default of payment of fine, to undergo additional R.I. for one month. Under Section 368 of IPC R.I. for 01 year and fine of Rs. 100/-, in default of payment of fine, to undergo additional R.I. for one month. (All the sentences are directed to run concurrently) 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, the victim who belongs to SC and ST caste, aged below 18 years was under the legal guardianship of her father and mother, kidnapped by the accused from her parents’ guardianship and he committed forcible sexual intercourse with her. Missing report lodged by father of the victim before the Police Station- Darima, District- Surguja. During the investigation, the victim was recovered on 27.04.2005. Subsequently, victim’s statement was recorded and she stated that the appellant abducted and took her to secluded house where he committed forcible sexual intercourse with her. Spot map was prepared vide Ex. P/2. The appellant was arrested vide Ex.P/8. The victim was medically examined by Dr. Snehalata (PW- 9) and submitted her report vide Ex. P/8. With regard to ascertain the age of the victim Dakhil Kharij Register was seized vide Ex. P/10. After 3 completion of due and necessary investigation, charge-sheet was led before the jurisdictional Magistrate who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant and co-accused person for alleged commission of offence under Sections 363, 366, 368 of IPC and Section 3 (2) (v) of SC & ST Act (Prevention of Atrocities) Act, 1989. The appellants/accused persons having abjured guilt were subjected to trial. 3. In order to establish the charges against the accused persons, the prosecution has examined as many as 12 witnesses. The statement under Section 313 of Cr.P.C. of the appellants have been recorded, in which they denied the incriminating charges leveled against them and pleaded their innocence that they have been falsely implicated in this case. However, one witness examined by them in their defence. 4. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record has acquitted the co-accused of all the charges and thereby convicted and sentenced the present accused/appellant as mentioned in inaugural para of this judgment. Hence, this present appeal. 5. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case, the father of the victim on initial stage lodge a report of missing before the concerned police station on 16.04.2005 (after lapse of three days), mentioning therein that the victim has gone from her house in the intervening night at about 12:00 on 15.04.2005. 4 On the report, the police registered a missing information and thereafter victim was recovered on 27.04.2005, a report lodged for offence punishable under Sections 366, 367, 368 and 376 of IPC and Section 3 (1) (xii) of SC and ST Act, 1989 against the accused. He further contend that the age of the victim on the date of incident was 17 years 7 months, as per the school register, but to prove the age of the victim no other evidence has been produced before the Court except the school admission register. The school admission register regarding the age of the victim is not reliable under the Indian Evidence Act, 1872, so prosecution has utterly failed to prove its case beyond reasonable doubt and findings recorded by learned trial court are highly perverse. So, the impugned judgment is liable to be set aside. Reliance has been placed in the decisions of Ravi Sahu vs. State of Chhattisgarh, passed in CRA No. 212 of 2020 & Guddu Poyam vs. State of Chhattisgarh, passed in CRA No. 101 of 2023 by this Court. 6. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellant. So, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is evident from record of learned learned trial Court that it framed charges for offence punishable under Sections 363, 366, 368 and Section 3 (2) (v) of SC & ST Act (Prevention of Atrocities) Act, 1989 and in alternate Section 376 (2) (g) of IPC against the present appellant 5 and co-accused person and after appreciation of oral and documentary evidence, learned trial Court acquitted the co-accused person of all the charges, but thereby convicted the present appellant for offence under Sections 376 (1), 363, 366 and 368 of IPC by acquitting him of the charge of under Section 3 (2) (v) of SC & ST Act (Prevention of Atrocities) Act, 1989. 9. As per the prosecution, on the date of incident victim was below 18 years i.e.,, 17 years 7 days of age. 10. Prosecutrix/victim (PW-1) has stated that on the date of incident she went to see Ramnavami, on the way, the appellant abducted her from the road to secluded house by threatening her, where he committed forcible sexual intercourse with her. After three days police took them to Police Station- Darima and arrested the appellant and victim’s grandfather took the victim to his house. In her cross-examination, she stated that she was unaware of the fact that prior to the fateful incident, her father and brother assaulted the appellant. Further, she stated that she was very much keen to witness Ramnavami as such, she alone herself went to see Ramnavami out of her own free will without having the dinner at about 8:00 pm and she further deposed neither the present appellant had called her nor the co-accused/Taresh called her. 11. Dr. Snehalata (PW-9), who examined the victim stated that she did not find any external injuries on her body and also did not find any injury in private part of victim and she opined that victim was habitual of intercourse and gave her report vide Ex. P/8. 12. Thus, from the aforesaid discussion of evidence of victim (PW-01) only inference can be drawn that the victim was a consenting party to the act 6 of the appellant. 13. Now, the next question for determination by this Court is that whether the victim (PW-01) was minor at the time of incident or not. 14. Ambika Prasad Sonwani (PW-10), who is the Principal of Government Primary School, Baigapara stated in examination-in-chief that the police seized Dakhil Kharij Register as per Ex. P/10 and original Dakhil Register is Ex. P/11 and attested copy of said register is Ex. P/11-C. Further stated, as per the said Register, he gave age certificate of the victim vide Ex. P/2 and as per the said register, date of birth of the victim is mentioned as 06.04.1988. In his cross-examination, he admitted this fact that in the said register, date of birth of victim was not written by him, the said entry was made by previous Principal namely Tej Ram, however, he further stated in his cross-examination that he could not be able to tell that who wrote the date of birth in the said register. 15. 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, 42, 43, 44 & 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 thePrincipal. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the 7 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. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "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....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no 8 probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. ThePrincipal has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 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; 9 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 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.” 16. In the light of above judgment, it is clear that except Dakhil Kharij Register (Ex. P/11) no other evidence like ossification test report have been produced by the prosecution to determine the age of the victim that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witness Principal (PW-10) and victim’s father (PW-2) are not sufficient to hold that the victim was minor on the date of incident because of the reason that the author of the registration of birth of the victim in Dakhil Kharij Register has not been examined. There is 10 no evidence that on what basis the date of birth of the victim was recorded in the said register. The evidence produced by the prosecution with respect to the age of the victim are not of that sterling quality which is sufficient to determine the age of the victim. Therefore, there is lack of clinching and admissible evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 17. The next question for consideration would be whether the appellant has committed rape upon her not. 18. The victim (PW-1) has clearly stated in her statement that the accused/appellant did not call her, she herself went to see Ramnavmi out of her own free will from her house. The conduct of the victim clearly shows that she is consenting party and also medical evidence has not supported the prosecution case, therefore, under these circumstances of the case as also evidence on record, it would not be safe for this Court to hold that the appellant has committed rape upon her, rather it reflects from the evidence that the victim herself had made consented sexual intercourse with the appellant. 19. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt. 20. In the result, the appeal is allowed. The impugned judgment of conviction and sentence dated 22.08.2007 is set aside. The appellant is acquitted of all the charges leveled against him. The appellant is already on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of 11 Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned 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. 21. 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 AMIT PATEL