1 2025:CGHC:1625 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 820 of 2006 Nirendra Kumar, S/o Neelkanth, By Caste Sahu, R/o Borsi, Thana Rajim, District Raipur (C.G.) ... Appellant versus State of Chhattisgarh, Through District Magistrate Raipur, District Raipur (C.G.) ... Respondent For Appellant : Smt. Indira Tripathi, Advocate For Respondent : Mr. Vivek Mishra, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 08.01.2025 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 31-10- 2006, passed by learned Additional Sessions Judge, Gariyaband, District Raipur (C.G.), in Sessions Trial Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.01.10 18:51:52 +0530 2 No.171/2006, whereby the appellant-accused has been convicted as under:- Conviction Sentence & Fine U/s 363 of the IPC R.I. for 5 year and fine of Rs.500/- in default thereof, 15 days additional RI U/s 366 of the IPC R.I. for 5 years and fine of Rs.500/- in default thereof, 15 days additional RI U/s 376 of the IPC R.I. for 7 years and fine of Rs.5,000/- in default thereof, 5 months additional RI The sentences are directed to run concurrently. 2. As per prosecution story, on 9-1-2006 about 9.00 pm, the prosecutrix, aged about 15 years, was sleeping in a separate room of her parents' house. At that time, the accused, who lives in the neighbourhood, woke her up and said that he loves her and asked her to come to Bala Sahu's byara. When she refused to go, the accused threatened her that he would kill her, due to which she got scared. The accused took her to the roof via the stairs by pulling her hand and took her to Bala Sahu's byara and raped her forcibly. The prosecutrix’s mother came to the scene of the incident while searching her and caught hold of the accused's hair and screamed, after which the accused ran away. Hearing the voice, her father came. He told the incident to village's sub-sarpanch Ramesh Sahu and Rajju Rawat. Thereafter, the matter was reported and FIR was registered vide Ex.P-1. The prosecutrix was medically examined by Dr. D. Kudeshiya (PW-10) and given a report 3 vide Ex.P-13. Thereafter, statement of prosecutrix and other witnesses were recorded. After completion of the investigation, a charge sheet was filed against the accused. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 19 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. However in his defence, 4 documents were exhibited by him. 4. After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal. 5. Learned counsel for the appellant submitted that the date of birth of prosecutrix (PW-1) is not proved. No conclusive evidence regarding her age has been produced by the prosecution. To verify her age, her ossification test was conducted but, the doctor who conducted the ossification test, has not been examined by the prosecution. Thus, as date of birth of prosecutrix (PW-1) was not proved, the prosecution has failed to prove that the prosecutrix was minor at the time of the alleged incident. He further submitted that prosecutrix was a consenting party though prosecution has failed to prove its case, the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence. 6. On the other hand, the learned counsel for the State submitted that the conclusion given by the trial court 4 regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. Heard learned counsel for the parties and perused the record with utmost circumspection. 8. The prosecutrix (PW-1) has supported the prosecution case against the appellant. Her statement also makes it clear that when she was not found in the room where she was sleeping at night, her father (PW-2) and mother (PW-7) searched for her, she was found in Bala Sahu's byara from where the appellant was seen running away. 9. Doctor D Kudeshia (PW-10) conducted a medical examination of the prosecutrix (PW-1) on 11/01/2006 and submitted a report Exhibit P-13. According to which no injury of any kind was found on her body and no definite opinion was given by him regarding the immediate sexual intercourse. In this case, petticoat and underwear are said to have been seized from the prosecutrix. But the prosecutrix stated that she does not wear the said petticoat. No chemical test report has been presented in the case. Thus, the prosecution case is not proved by medical evidence or chemical test. Consenting party 10.The prosecutrix (PW-1) has stated in her Court statement that on the night of the incident, she was sleeping along with her brother in her home. The appellant entered in her room caught hold her hand and asked her to come along. 5 When she denied, he threatened to kill her, dragged her and taken to byara where, he committed forcible sexual intercourse with her. Thereafter, her parents came in search of her and caught the Appellant. 11.In her cross-examination this witness stated that when she was sleeping in her room, she did not lock the door from inside. She does not know from where the appellant entered her room. The appellant held her hand but she did not scream. She did not wake up her brother. When the appellant took her to her courtyard, she did not scream. When they were climbing the stairs, she did not scream either. She further stated that she climbed the stairs herself. When they jumped the wall of about 5-6 feet, she did not scream even then. She further stated that it took about half an hour to reach Bala Sahu's house. 12.In view of the above, it is clear from the statement of the prosecutrix that she herself went with the appellant and she did not resist him, nor did she shout anywhere. It is unnatural that the appellant entered her house, dragged her into the courtyard, they were climbing the stairs and the prosecutrix did not shout/scream. Moreover, they scaled a wall of about 5-6 feet and reached Bala Sahu's house which was about half an hour away, in between many people living, but the prosecutrix did not shout or protest the appellant. Thus, it is clear from the statement of the prosecutrix that she herself went to the appellant of her own free will. 13.In such a situation, on the basis of statement of the prosecutrix, the prosecutrix appears to be a consenting party. 6 14.Where the prosecutrix (PW-1) is the consenting party, for the offences under sections 363, 366, 376 of the Indian Penal Code, it becomes necessary to prove that at the time of the incident her age was below 16 or 18 years. Age 15.In this case, the prosecutrix herself or her parents have been unable to tell the date of birth of the prosecutrix (PW- 1). The prosecution has seized the Dakhal Kharij register Exhibit P-16 according to which the date of birth of the prosecutrix is recorded as 05/04/1990 and that register has been certified by teacher Baisakhu Ram Sahu (PW-4). If we calculate from that date, then the age of the prosecutrix on the date of incident i.e. 09/01/2006 was around 15-16 years. 16.On medical advice, ossification test has also been conducted regarding the age of the prosecutrix, which is also attached to the record. But the concerned doctor who gave the report has not been examined and according to that test report, Exhibit D-4, the age of the prosecutrix has been estimated to be around 17 years. It is well-established principle of law that the age estimated in the ossification test report can be presumed to be two years less or two years more than that. Since, presuming a higher age is in favour of the accused party, therefore, as per the 7 ossification test report, if the prosecutrix's age is 17 years and 2 years are added to it, then her age becomes 19 years, which becomes more than 18 years. 17.As far as the evidentiary value of the mention of the date of birth of the prosecutrix in the Dakhal Kharij register Exhibit P-16 is concerned, it is noteworthy in this regard that the parents of any child are the main source of the child's date of birth. The date of birth of a child is recorded in any document only on the information of his/her parents. The father (PW-2) has first stated that he had got the date of birth of the prosecutrix registered in the Kotwari register. But no such Kotwari register is produced and the father (PW-2) has admitted that when the prosecutrix (PW- 1) was admitted in school, he had got the date of birth written by guesswork because he does not remember the date of birth nor has he written it down anywhere. Thus it is clear that the date of birth recorded in the Dakhal Kharij register is not the date of birth told by the father of the prosecutrix. 18.The mother of the prosecutrix (PW-7) was also unable to tell the date of birth of the prosecutrix. She also stated her date of marriage and her date of birth by guesswork only. Thus, the statement of the mother also does not establish that the 8 date of birth recorded in the school was recorded with the knowledge of the mother. 19. 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 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 9 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 sufÏcient 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 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.” 20. 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 10 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.” 21. 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 ofÏcial 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 ofÏcial 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 the absence of the material on which the age was recorded.” 22. 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:- 11 “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 ofÏcial 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 ofÏcial 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).” 23. 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 12 give correct date of birth of the 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.” 24. Reverting to the case, the entry regarding admission of the prosecutrix (PW-1) in the Dakhal Kharij register Exhibit P-16 has not been made by Baisakhu Ram Sahu (PW-4). He has only produced the register and admitted in cross- examination that the entry regarding the prosecutrix’s date of birth in the register does not have the signature of the person who got her admitted. Each page of that register is also not numbered. There is also no mention of any birth date related document being brought at the time of admission. The prosecutrix had left the school in class-2 whereas the prosecutrix stated that she studied in the same school till class-5. According to the statement of Baisakhu Ram Sahu (PW-4), the date of leaving the school by the prosecutrix is not recorded in the register whereas 13 the date of leaving the school of other students is recorded. Thus, in the light of the above cited judgments, it is not clear that with whose knowledge the date of birth was recorded in the Dakhil Kharij register Exhibit P-16 and the said entry is not found to be reliable beyond doubt. 25. Thus, the prosecution has failed to prove beyond doubt that the date of birth of the prosecutrix (PW-1) is 05/04/1990 and that she was below 18 years of age at the time of the incident. Since the prosecutrix was a consenting party. In such a situation, the conviction of the appellant is not found to be justified. 26. Consequently, the appeal is allowed and the conviction and sentence in question is set aside and the appellant is acquitted of the charges leveled against him, giving him the benefit of doubt. 27. It is reported that the appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 28. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham