1 2025:CGHC:20140-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1093 of 2017 1 - Manpratap S/o Ramcharan Panika, Aged About 22 Years, R/o Village- Bhumka, Police Station Kotadol, District- Koriya, Chhattisgarh. ... Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Kotadol, District- Koriya, Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. DN Prajapati, Advocate For Respondent(s) : Mr. Afroj khan, Panel Lawyer DIVISION BENCH Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment on Board 02/05/2025 Deepak Kumar Tiwari, J. 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the Cr.PC is directed against the impugned judgment of conviction and sentence dated 2.5.2017 passed SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.05.05 17:02:16 +0530 2 by the Special Judge (Scheduled Castes & Scheduled Tribes {Prevention of Atrocities} Act, 1989), Baikunthpur, District Koriya (CG) in Special Sessions Case No.17/2016, by which, the appellant has been convicted and sentenced as under :- Conviction Sentence Under Section 363 of the IPC RI for 7 years and to pay a fine of Rs.500/-, in default of payment of fine, to undergo additional RI for 3 months. Under Section 366 of the IPC RI for 10 years and to pay a fine of Rs.500/-, in default of payment of fine, to undergo additional RI for 3 months. Under Section 376 (2) (<)(>) of IPC/Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 (being co-joint offence according to Section 42 of the Act, 2012) RI for 10 years with fine of Rs.500/-, in default of payment of fine, to undergo additional RI for 3 months. Under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Life imprisonment with fine of Rs.500/-, in default of fine, to undergo additional RI for 3 months. 3 2. Case of the prosecution, in brief, is that on 06.10.2015, at about 9:00 AM, the prosecutrix (PW-9), aged about 16 years, went to the school after informing her parents, however, she did not return home, on which, the father of the prosecutrix ‘D’ (PW-10) lodged an FIR (Ex.P/14) on 20.10.2015. Thereafter, the prosecutrix was recovered on 7.1.2016 from Village Salora, P.S. Urla, District Raipur. The statement of the victim was recorded, in which, it was revealed that the present appellant abducted the minor prosecutrix from the lawful guardianship of her parents with an intention to establish physical relations with her and thereby, committed rape with her knowing fully well that the prosecutrix belongs to the ST Category. The victim was medically examined by Dr. Abhaya Gupta (PW-13) vide Ex.P/18. The appellant was also examined by Dr. S.N. Gupta, who gave his report vide Ex.P/5. The School Admission Register (Ex.P/2C) was seized, wherein, the date of birth of the victim was recorded as 6.1.2000. The temporary caste certificate of the victim was obtained vide Ex.P/6, the spot map was prepared vide Ex.P/9, Crime Details Form was prepared vide Ex.P/15 and the marksheet of the victim was seized from her father vide Ex.P/16. 3. Statements of the witnesses were recorded. Thereafter, after usual investigation, the appellant was charge-sheeted before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the learned Special Judge 4 received the case on transfer for hearing and disposal in accordance with law. 4. In order to bring home the charges, the prosecution examined as many as 14 witnesses and exhibited 23 documents. 5. The statement of the accused was recorded, wherein, he pleaded innocence and false implication. However, in support of his defence, the appellant neither examined any witness nor exhibited any documents. 6. The concerned Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned above, against which, this Appeal has been preferred by the appellant. 7. Learned counsel for the appellant would submit that the age of the victim has not been proved to be less than 18 years on the date of the offence. He would further submit that the prosecutrix (PW-9) and her father – D (PW-10) categorically admitted the fact that the prosecutrix was in love relation with the appellant, therefore, the prosecution has failed to establish that on the date of the offence, the prosecutrix was minor and all these go to show that the prosecutrix was a consenting party and she willingly went with the appellant and had physical relations with him. Therefore, the prosecution has utterly failed to prove the charges beyond reasonable doubt 5 and the appellant is entitled for acquittal and the appeal deserves to be allowed. 8. Learned State Counsel would support the impugned judgment and submit that the prosecution has been able to bring home the charges beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. Therefore, the Appeal deserves to be dismissed. 9. We have heard learned counsel for the parties and also perused the record with utmost circumspection. 10. First of all, the question which arises for consideration is that whether the prosecutrix (PW-9) was minor on the date of the incident i.e. on 6.10.2015. In this connection, the prosecution has filed the Dakhil Kharij Register (Ex.P/2C), which is proved by Rampratap Yadav (PW-8), Headmaster of the School. He categorically stated in his cross-examination that the date of birth of the prosecutrix was recorded in the said Register on the basis of information given by her father. He further admitted that at the time of admission in the school, the Birth Certificate or Kotwari Register has not been produced by the father of the prosecutix. The entry made in the School Register with respect to the age of the prosecutrix was only on the basis of the statement of the father - D (PW-10). The father of the victim clearly stated at para 15 of his cross-examination that he provided the date of birth of the victim at the time of school 6 admission based on estimation only. He further admitted at para 18 of his cross-examination that at the time of admission in the school, he did not fill any form. 11. In view of the aforesaid evidence, it is explicit that the father of the prosecutrix provided an approximate date of birth of the prosecutrix based on oral statement and he did not produce any document in this regard. The father of the victim has stated the age of the prosecutrix in absence of any authentic document as no document/material has been produced or is available on record to prove the age of the prosecutrix. Even in the School Admission Register (Ex.P/02C), the date of birth of the prosecutrix has been recorded on the basis of the statement of her father as no primary document was produced at the time of admission in the school. 12. In the matter of Ravinder Singh Gorkhi Vs. State of UP1 , the following was observed at para-26:- “26. In Birad Mal Singhvi v. Anand Purohit {1988 Supp SCC 604} this Court held: (SCC p. 619, para 15) “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 1 (2006) 5 SCC 584 7 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 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.” (emphasis supplied) 13. Same proposition was reiterated in the matter of Babloo Pasi Vs. State of Jharkhand and another2, wherein the following material observations were made at paras-28 to 29:- “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 Vs. Anand Purohit). 29. ……………………………...in the absence of evidence to show on what material the entry in the voters' list in the name of the accused was made, a mere production of a copy of the 2 (2008) 13 SCC 133 8 voters' list, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused……………………………” 14. Further in the matter of Madan Mohan Singh and Others Vs. Rajni Kant and Another3, it was observed that the entries made in the official record by an official or person aurthorised in performance of official duties may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/ school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 15. In the light of aforesaid settled legal principles, if we examine the facts of the present case, we find that the relevant document on the basis of which entries were made in the School Admission Register (Ex.P/2C) was not filed and proved. Mere oral statement of the parents cannot discharge the burden of the prosecution to prove the said fact that on the date of the incident, the prosecutrix was minor. 16. The prosecutrix (PW-9) categorically admitted in her evidence at para 24 that she was in love relation with the appellant and further also stated that the appellant did not forcefully take her 3 (2010) 9 SCC 209 9 against her will. Instead, she voluntarily left her house and accompanied the appellant. After leaving the village, both resided at Raipur for about 5-6 months. The father of the prosecurix (Pw-10) also stated that she was in love relation with the appellant and when he reached Raipur in search of her, she was found happily living with the appellant. 17. Since the prosecution has failed to prove that the prosecutrix was a minor at the time of the alleged offence, on perusal of the evidence the prosecutrix (PW-9) and her father (PW-10) and looking to the conduct of the prosecutrix, it is evident that the prosecutirx was a consenting party. Thus, the prosecution has failed to prove that the sexual assault was a result of the appellant’s coercion or compulsion on his part. 18. On the basis of aforesaid discussion, this Court is of the opinion that the prosecution has failed to discharge its burden to prove the charges levelled against the appellant and we are inclined to extend benefit of doubt to the appellant. 19. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 363 & 366 of the IPC, Section 376 (2) (<)(>) of the IPC/Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are set aside and he is acquitted of the said charges. The appellant is on bail. He need not surrender. 10 The bail bonds furnished by the appellant shall remain in operation for a period of 6 months in view of the provisions contained under Section 437-A of the CrPC. 20. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Shyna