1 2025:CGHC:44941 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1051 of 2007 Balram, aged 27 years, S/o Amol Singh Gond, R/o Village-Ainthi, PS Marwahi, Distt. Bilaspur (CG) ... Appellant versus State Of Chhattisgarh through PS Pendra, Distt. Bilaspur (CG) ... Respondent For Appellant : Mr. Hemant Ku. Sahu and Mr. Aman Sharma, Advocates. For Respondent : Ms. Nand Ku. Kashyap, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey, J Judgment on Board 03-09-2025 Challenge in the present appeal is to the legality and validity of the judgment of conviction and order of sentence dated 26th October, 2007 passed by the Additional Sessions Judge, Penraroad, Distt. Bilaspur in ST No.P 20/2007 whereby the appellant stands convicted and sentenced as under: 2 Conviction Sentence Under Section 363 of Indian Penal Code. RI for three years, pay a fine of Rs.100/- and in default thereof to suffer additional RI for one month. Under Section 366 of Indian Penal Code. RI for three years, pay a fine of Rs.100/- and in default thereof to suffer additional RI for one month. Under Section 376 of Indian Penal Code. RI for seven years, pay a fine of Rs.200/- and in default thereof to suffer additional RI for two months. All the sentences were directed to run concurrently. 02. Case of the prosecution, in brief, is that the prosecutrix, a minor girl, resides at Village-Masurikhar where house of the appellant’s in- laws is also situated. At the relevant time, the appellant was residing at his in-laws’ house and used to visit the house of the prosecutrix. He told her that his wife is not able to conceive and hence on the pretext of marrying her, on 22.4.2007 eloped with her to his village-Aithi and kept her in his house. Though the appellant’s wife was there in the house but she said nothing to him. Thereafter, the accused in a Mass Wedding Ceremony of Gond community at Village-Madakot got registration of his marriage with the prosecutrix and obtained receipts and on 2.5.2007 performed marriage with her in the said Mass Wedding which was attended by his family members also. The accused/appellant established physical relations with her. During the 3 course of search of the prosecutrix, her parents came to know that the accused has married her in Mass Wedding and kept her in his house. On written report (Ex.P/8) being made by her father, FIR (Ex.P/20) was registered under Sections 363, 366 & 376 of IPC and on 5.5.2007 she was recovered from the possession of the accused vide recovery panchanama of Ex.P/11. During investigation, in connection with her date of birth, the birth-death registration register was seized as per Ex.P/14, marriage registration receipts of the Mass Wedding and marksheet of the prosecutrix were seized; her medical examination was got done; underwear of the accused was seized; vaginal and semen slides were prepared and seized; statements of the witnesses were recorded and the seized articles were sent to FSL for chemical examination. After completing the necessary formalities of investigation, charge sheet under Sections 363, 366A, 376 & 494 of IPC was filed against the accused. 03. Learned trial Court framed charges under Sections 363, 366 & 376 of IPC which were abjured by him and he prayed for trial. In order to substantiate its case the prosecution examined 17 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, no witness was examined by him in defence. 4 04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal. 05. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. In this case, the prosecutrix (PW-1) has turned hostile and not supported the prosecution case. PW-2 and PW-3 have also not supported the prosecution case. As per medical evidence of PW-12, it is clear that the prosecutrix was more than 18 years of age; there was no external or internal injury on her body and she was habitual to sexual intercourse. Though the doctor advised for ossification test of the prosecutrix for ascertaining her age, but no such test was conducted by the prosecution. He submits that in view of evidence of PW-4 Shiv Das Kashipur, Kotwar, the Kotwari register (Ex.P/15C) submitted by the prosecution cannot be made basis for calculating the age of the prosecutrix. This document does not bear the name of the prosecutrix but of one Charumati and further the author of the entry made in this document regarding date of birth has not been examined. Thus, the prosecution has utterly failed to prove that the prosecutrix was below 18 years of age on the date of incident. Therefore, looking to the overall evidence on record and conduct of the prosecutrix, no 5 offence is made out against the appellant and he deserves to be acquitted of all the charges. 06. On the other hand, learned counsel for the State opposing the contention of the appellant would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is liable to be dismissed. 07. Heard learned counsel for the parties and perused the material available on record. 08. It is clear from the record of learned trial Court that the appellant was charged under Sections 363, 366 & 376 of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him as described in para 1 of this judgment. 09. PW-1 prosecutrix states that about five months ago she went to the house of the accused of her own without informing her parents as she liked him where she met his wife and stayed there for three months. She admits that she went to Madapur with the accused for marrying him and as the villagers of Masurikhar informed her parents, they lodged a report and the police took the accused with her to police station Pendra. She was declared hostile and cross-examined by the prosecution where she denied all suggestions of the prosecution. 6 However, she admitted that they were living as husband and wife and performed marriage. In cross-examination by the defence she admitted that they performed marriage in Mass Wedding where she disclosed her age as 19 years. From bare perusal of the statement of the prosecutrix it is clear that she was a consenting party to the act of the accused/appellant and this has also been observed by learned trial Court in the impugned judgment. However, holding her below 18 years of age the learned trial Court held the accused guilty of the aforesaid offence. Therefore, age of the prosecutrix is very crucial in this case and now it is to be seen whether the prosecution has proved her minority on the date of incident in accordance with law. 10. PW-1 prosecutrix was examined in the Court on 24.8.2007 and the incident took place on 22.4.2007. In para 6 of her deposition she states that at present she is 19 years old and that she does not remember her date of birth. However, she states that she cannot tell as to on what basis she is claiming herself to be 19 years old. In para 8 she denied the suggestion of the prosecution that she is 16 years old. 11. PW-2 mother of the prosecutrix states that the prosecutrix is 20 years old. She was declared hostile and cross-examined by the prosecution where she states that she did not tell the police that the prosecutrix is 16 years old and does not know how it is written in her police statement Ex.P/7. 7 12. PW-3 father of the prosecutrix states that at present the prosecutrix would be 17 ½ years. The police seized Class 7 marksheet of the prosecutrix (Ex.P/13) as per seizure memo of Ex.P/12 which bears his signature from A to A part. In cross-examination he states that he does not know as to who admitted his daughter/prosecutrix in the school and states that he did not admit her. 13. In order to prove age of the prosecutrix, the prosecution filed her marksheet Ex.P/13 and the Kotwari register Ex.P/15C. PW-4 Shivdas Kashipuri, Kotwar, states that the police seized Kotwari Panji as per seizure memo Ex.P/14 which bears his signature from A to A part. In the said register, date of birth of the prosecutrix is recorded as 14.7.1991. In cross-examination he admits that this entry was made by his father Ram Prasad Kotwar. He also admits that the prosecutrix name is different and it is written as Charumati in the Kotwari Panji. However, he denied the suggestion that Charumati is another person who is daughter of one Samman Singh of village Damdam. 14. It is thus clear from the statements of PW-4 Shivdas Kashipuri that he was not author of the date of birth entry in the Kotwari Panji of Ex.P/15C. The prosecution did not examine the person who made this entry. Further, PW-12 Dr. Nalini Singh who examined the prosecutrix and found her habitual to sexual intercourse, advised for ossification test of the prosecutrix. However, no such test was conducted by the prosecution. 8 15. This Court in its judgment dated 18.3.2025 in CRA No.1035/2019 in the matter of Vinod Nat Vs. State of CG in paras 14 & 15 observed as under: “14. Vide judgment dated 18.07.2023 in the matter of P. Yuvaprakash Vs. State Rep. By Inspector of Police, Hon’ble Apex Court held in paras 18 and 19 which read thus:- “18. Reverting to the facts of this case, the headmaster of M's School, CW-1, was summoned by the court and produced a Transfer Certificate (Ex.C-1). This witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons served by the court and deposed that 'M' had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07 1997 She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.c., the date of birth. Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office. 9 19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9. Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years" In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor" This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, ie, a transfer certificate and extracts of the admission register, are not what Section 94 (2) (1) mandates: nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, 10 based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross- examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9.” 15. 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 & 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 the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the 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. 11 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.4 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; 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 12 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 light of above, in the present case as discussed above it is clear that the author of the entry made in the Kotwari Panji regarding date of birth has not been examined; name of the prosecutrix is also different in the said Panji and no ossification test was conducted by the prosecution. Thus, the prosecution has failed to prove on the basis of cogent and reliable evidence beyond reasonable doubt that the prosecutrix was below 18 years of age on the date of incident. 17. This Court after appreciation of evidence has already held in the preceding paragraph that the prosecutrix accompanied the appellant, married him in Mass Wedding of Gond community and established physical relation with him of her own free will and she was a consenting party to the act of the appellant. Since the prosecution failed to prove minority of the prosecutrix at the relevant time, no offence is made out against the appellant. Being so, the impugned judgment of learned trial Court is not legally sustainable and is liable to be set aside. 18. In the result, the appeal is allowed and the impugned judgment convicting and sentencing the accused/appellant under Sections 363, 13 366 & 376 of IPC is hereby set aside and he is acquitted of the said charges. Accused/appellant was on bail, however, pursuant to non- bailable warrant issued against him, he is sent back to jail. Therefore, the appellant be released forthwith if not required in connection with any other offence. However, keeping in view the provisions of Section 481 of BNSS, 2023 he is directed to furnish a personal bond for a 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 alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, he on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 19. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. A copy of this judgment be also forwarded to the concerned Jail Superintendent for information and necessary action. Sd/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.09.06 15:57:30 +0530