1 2025:CGHC:1541 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 703 of 2006 Ramlal, S/o Shri Dhaneshwar Chandak, aged about 19 years, R/o Chhote Devda, Taraigudapara, Police Station: Jagdalpur, District Bastar (C.G.) ... Appellant versus State of Chhattisgarh, Through: The Police Station Jagdalpulr, District Bastar (C.G.) ... Respondent For Appellant : Mr. Praveen Kumar Tulsyan, Advocate For Respondent/State : Mr. HAPS Bhatia, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 09.01.2025 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 24-07- Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.01.10 18:52:38 +0530 2 2006, passed by learned 2nd Additional Sessions Judge, Bastar place Jagdalpur (C.G.), in Sessions Trial No.115/2006, whereby the appellant-accused has been convicted as under:- Conviction Sentence & Fine U/s 363 of the IPC R.I. for 3 years and fine of Rs.500/- in default thereof, 3 months’ additional RI U/s 366 of the IPC R.I. for 3 years and fine of Rs.500/- in default thereof, 3 months’ additional RI U/s 376 of the IPC R.I. for 7 years and fine of Rs.500/- in default thereof, 3 months’ additional RI The sentences are directed to run concurrently. 2. As per prosecution story, on 28.12.2005 at around 6 PM, the appellant lured the minor prosecutrix on the pretext of marriage, took her from village Arumargaon Tikragudapara with him to his home at village Chhote Devda where he committed forcible sexual intercourse with her. On the next day, when the people of the village know the above, the appellant locked the prosecutrix inside his house. Thereafter, he released her at the evening, after that the prosecutrix reported the matter at Jagdalpur Police Station, on the basis of said report, FIR (Ex.P-1) was registered. Thereafter, the prosecutrix was medically examined. Her clothes were seized vide Ex.P-2. Her vaginal slides were preserved vide Ex.P-12. A spot map (Ex.P-16) was prepared. Dakhil Kharij register of the prosecutrix was seized vide Exhibit P-5. During the investigation, the 3 clothes of the prosecutrix and the accused were sent for forensic examination. 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 6 witnesses, exhibited 18 documents and one article. 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, one document was 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 also not conducted. 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 incident. He further submitted that prosecutrix was 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 4 submitted that the conclusion given by the trial court 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 in her Court statement but, her statement is not corroborated by medical evidence. Dr. A. Chandra Rao (PW- 3) has stated that she has medically examined the prosecutrix and has given a report (Exhibit P-4) according to which no injury was found on her body and as well as no signs of rape were found on her body. Therefore, no definite opinion has been given by the Doctor regarding rape. Thus, the prosecutrix’s statement regarding rape is not corroborated by medical evidence. Consenting party 9. In the statements of the prosecutrix (PW-1) and her father (PW-6), it has been clearly stated that the village of the appellant and theirs are adjacent. The prosecutrix (PW-1) has stated in cross-examination that the appellant used to visit her neighbour's house. She has clearly admitted in paragraph-6 that she had fallen in love with the appellant. She has stated in paragraph-7 that she had not gone to Piluram's shop to buy anything at the time of the incident. She has also stated that she was engaged before the incident. In paragraph-9 she has stated that at the time of 5 the alleged incident, the appellant's parents and elder brother were also present in his house. In paragraph-10 she has stated that the room in which she slept did not have a door, but the appellant slept with his uncle and aunt and she slept in another room. She admitted the fact that she had not suffered any injury in her private parts. She has stated that the letter in Exhibit D-1 is in her handwriting but has denied writing it voluntarily and has said that a person named Saligram forced her to write it. It is noteworthy that in the letter in Exhibit D-1, it is mentioned that the appellant is innocent and the prosecutrix herself is ashamed. It is also mentioned in it that the prosecutrix has written that she and the appellant should not be separated and that she had to lie under the pressure of her parents. She herself wants to marry the appellant. The prosecutrix herself did not mention such a letter in her statement, but when she was confronted with it in cross-examination, she stated that she wrote the said letter under pressure. The statement of writing under pressure is not found to be credible. 10. The prosecutrix (PW-1) has also admitted in paragraph 14 of cross-examination that after the incident, her condition became like that of an insane and she went to the house of the appellant where she stayed in his house from 13/02/2006 to 16/04/2006 i.e. for about 02 months and during those 02 months, her parents did not report to the police about her staying in the house of the appellant. She has also stated that while going to the house of the appellant, she had taken clothes with her. She has also stated that the appellant is a Harijan and she herself is a Tribal. She has also admitted that in their tribal society, there is no eating, drinking or meeting with the Harijan’s 6 community. Thus, if we look at the entire evidence of the prosecutrix, it becomes clear that she was the consenting party. 11.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 12.In this case, the prosecutrix (PW-1) herself or her father (PW-6) have been unable to tell the date of birth of the prosecutrix. Headmaster Ratanlal Devangan (PW-4) has produced the Dakhal Kharij register of the primary school of the prosecutrix, Tiwasguda, which is related to the admission of the prosecutrix, as Exhibit P-5 and has stated that its entry is in his own handwriting. According to which the date of birth of the prosecutrix (PW-1) was 04/04/1990. The date of the incident is stated to be 28/12/2005. Thus, at the time of the incident, the age of the prosecutrix was more than 15 years. The doctor has advised for ossification test to check the age of the prosecutrix but, no ossification test has been done. Thus, the only evidence regarding the date of birth of the prosecutrix is the Dakhil Kharij register (Exhibit P-5). 13. 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 7 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 8 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.” 14. 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.” 15. Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held that:- 9 “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.” 16. 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. 10 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).” 17. 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 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 11 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.” 18. In the light of the above judgments, if I consider the age of the prosecutrix at the time of the incident, it is noteworthy that the main source of the date of birth of any child is his/her parents. At the time of admission in school also, the date of birth is recorded on the basis of information given by the parents or on the basis of other birth certificates. In this case, there is no documentary evidence available regarding the date of birth other than the Dakhil Kharij register. There is no clear mention of whose information the date of birth has been recorded in the Dakhal Kharij register. Head teacher Ratanlal Devangan has accepted that the date of birth has been written as told by the father of the prosecutrix, but the father (PW-6) of the prosecutrix himself has failed to tell the date of birth of the prosecutrix . In such a situation, it is doubtful that the date of birth of the prosecutrix has been recorded in Exhibit P-5 on the basis of information given by the guardian. In such a situation, in the light of above cited judgments, the date of birth recorded in Exhibit P-5 is not clear, reliable and conclusive evidence. 19. On the basis of the above evidence discussion, this court finds that the prosecution has failed to prove that the date of birth of the prosecutrix was 04/04/1990 and that 12 she was a minor at the time of the incident. Since the prosecutrix was also found to be a consenting party and it is not confirmed by medical evidence that she was being raped. In this situation, the conviction of the appellant is not found to be based on clear, reliable and sufficient evidence. Thus, the benefit of doubt goes to the appellant. 20. 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. 21. 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. 22. 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