1 2025:CGHC:4258 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 18-11-2024 Judgment delivered on : 23-01-2025 CRA No. 116 of 2005 Mahesh Sahu S/o Dharmu Sahu, aged 38 years, Occupation Agriculture & Labour, R/o Village Bhatgaon, P.S. Dhamtari, District Dhamtari (CG) ...Appellant versus The State Of Chhattisgarh through P.S. Dhamtari, District Dhamtari (CG) ... Respondent For Appellant : Mr. D.N. Prajapati, Advocate. For Respondent : Mr. Akhilesh Kumar, Govt. Advocate. Hon'ble Smt. Justice Rajani Dubey, J CAV Judgment The appellant in this appeal is challenging the legality and validity of the judgment of conviction and order of sentence dated 2 28.1.2005 passed by the Additional Sessions Judge, Dhamtari in ST No.268/2004 whereby he stands convicted and sentenced as under: Conviction Sentence Under Section 376(1) of Indian Penal Code. RI for seven years, pay a fine of Rs.200/- and in default thereof to suffer additional imprisonment for one month. Under Section 450 of Indian Penal Code. RI for three years, pay a fine of Rs.200/- and in default thereof to suffer additional imprisonment for one month. Both the sentences were directed to run concurrently. 02. Case of the prosecution, in brief, is that on 10.7.2004 the prosecutrix, aged about 12 years, was at her residence at Village- Bhatgaon. At around 12 noon the accused/appellant forcibly entered her house and committed rape upon her on the threat of life. She informed about the said incident on 13.7.2004 to her father and other persons and thereafter, on 14.7.2004 FIR was lodged against the accused under Sections 450, 376 and 506 of IPC. During investigation, medical examination of the prosecutrix as well as the accused was got done. The clothes worn by the prosecutrix at the time of incident were seized vide Ex.P/3. Birth certificate of the prosecutrix was seized vide Ex.P/4; spot map Ex.P/5 was prepared; clothes of the accused worn at the time of offence were seized vide Ex.P/6 and Dakhil-Kharij register 3 of the school of the prosecutrix was seized vide Ex.P/18. Statements of the witnesses were recorded and after completing usual investigation, charge sheet under Sections 376, 450 and 506B of IPC was filed against the accused. Learned trial Court framed charges under Sections 376(1), 450 and 506B of IPC against him, to which he abjured his guilt and prayed for trial. 03. In order to substantiate its case the prosecution examined 15 witnesses. 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. 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 appellants would submit that the impugned judgment is bad in law, perverse, erroneous and liable to be set aside. The trial Court should have seen that the prosecution has failed to prove its case beyond reasonable doubt as the medical report was found negative and no injury was noticed on the body including the private parts of the prosecutrix. Moreover, the FIR was lodged with a delay without any satisfactory explanation therefor. There is no conclusive and cogent legally admissible evidence regarding age of the 4 prosecutrix. In para 4 of her deposition the prosecutrix admits that Govind (Sarpanch) had told her that she would get Rs.25,000/-, so she lodged a report. Thus, looking to the conduct of the prosecutrix and the nature and quality of evidence adduced by the prosecution, conviction of the appellant is not legally sustainable and he deserves to be acquitted of all the charges. 06. On the other hand, learned counsel for the State supporting the impugned judgment submits that the learned trial Court having regard to the overall evidence on record, oral and documentary, has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. Hence the 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 376(1), 450 and 506B of IPC and after appreciation of oral and documentary evidence, learned trial Court acquitted him of the charge under Section 506B of IPC and convicted and sentenced him under Sections 376(1) and 450 of IPC as mentioned in para 1 of this judgment. 09. PW-1 prosecutrix states that on the date of incident the accused/appellant entered her room and after removing her clothes 5 committed rape upon her on the threat of life. Immediately after the said incident she informed her parents about it and thereafter, they went to police station and lodged report against him. In cross- examination she admits that before giving statement in the Court she was taken by Dayaram to an advocate and she is making statement as instructed by that advocate. She also admits that Sarpanch Govind had told her that if she lodged report, she would get Rs.25,000/-, therefore, she lodged the report. She also admits in para 5 that somebody had stolen five hundred rupees of her father from her house and that her father asked her to lodge a report of this theft. 10. PW-2 father of the prosecutrix states that he was informed by the prosecutrix that the accused committed rape upon her on the threat of life. He admits the suggestion of the defence that five hundred rupees was stolen from his house and so he called the elderly people for their advice in this matter for lodging a report. He states that the years of birth of his three children are 1988, 1990 and 1992 respectively but he does not remember their date of birth. He also admits that today he has come with one Dayaram who took him to an advocate and that advocate instructed him. However, he denies the suggestion that Govind had told that on lodging report they would get Rs.25,000/-. 11. PW-3 Saroj Bai states that her brother informed her that the accused/appellant has committed rape on the prosecutrix and therefore, she has to go with the prosecutrix for lodging a report and 6 then she along with the prosecutrix and her father went to lodge report. In cross-examination she states that while giving statement to the police, she had told the police about asking the prosecutrix outside the police station regarding the incident but if it is not written in her police statement, she cannot tell the reason. 12. PW-4 Bhedkumar states that on being called by Sarju, he along with Ramdhar, Jhadi, Mansa and others went to his house where Sarju informed them about theft in his house from the chest. When they went to see the chest, they found the prosecutrix sitting there and seeing them she started crying. On being asked, she told that the accused committed rape on her. In cross-examination he states that he had told the police about prosecutrix sitting there and crying and if it is not written in his diary statement he cannot tell the reason. He admits that a village meeting was convened regarding theft committed in the house of Sarju. 13. PW-6 Dayaram and PW-9 Jhadiram state that Sarju informed them about theft in his house and when they went to his house, the prosecutrix informed them about rape committed by the accused. They admit that a village meeting was convened regarding the theft. 14. PW-15 Dr. Smt. Jaya Phuljhele examined the prosecutrix and did not notice any internal or external injury on her body, her hymen was old torn and in her opinion, she was habitual to sexual intercourse. Her report is Ex.P/21. 7 15. PW-14 Ramji Dhruv, Head Master, states that as per Dakhil- kharij register of the school (Ex.P/19), date of birth of the prosecutrix is 4.6.1990 and he gave birth certificate of Ex.P/20 to the prosecutrix on the basis of entry made in the said register. In cross-examination he admits that entry made in Ex.P/19 is not in his handwriting. He also admits that he has no knowledge as to on what basis the said date of birth 4.6.1990 was entered in the register. 16. 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 & 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. 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:- 8 "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 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." 17. The Supreme Court in the matter of Manak Chand alias Mani vs. 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 9 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 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 sufficient 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 10 fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 18. Learned trial Court merely on the basis of school certificate found that the prosecutrix is below 16 years of age on the date of incident. However, in light of aforesaid decisions of the Hon'ble Supreme Court, such finding cannot be sustained. There is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident. Though Dakhil-Kharij registered has been produced by the prosecution but author of the entry made in the said register regarding date of birth of the prosecutrix has not been examined. There is no evidence to show as to on what basis the said date of birth was entered in this register. Despite being advised by PW-15 Dr. Smt. Jaya Phuljhele for x-ray of the prosecutrix to determine her age, no medical examination of her was got done by the prosecution for determining her age. Thus, it is clear that the prosecution has failed to prove the fact that at the time of incident the prosecutrix was minor. 19. So far as the offence of rape is concerned, in her cross- examination the prosecutrix admits that she lodged report at the instance of Sarpanch Govind who told her that if she lodged report she would get Rs.25,000/-. She also admits that they had gone to lodge report of theft and further admits that before going to the Court for her evidence, she along with father met an advocate who instructed them. 11 20. In the case of State (Govt. of NCT of Delhi) Vs. Pankaj Choudhary (2019) 11 SCC 575, it is observed and held by the Hon’ble Supreme Court that conviction of the accused can be based on the sole testimony of the prosecutrix without any corroboration provided it inspires confidence of the Court and the same cannot be doubted by the Court merely on the basis of presumptions and surmises. 21. In the matter of Krishan Kumar Malik Vs. State of Haryana, (2011) 7 SCC 130, the Hon’ble Supreme Court held that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 22. Having gone through the oral and documentary evidence on record, it is seen that there is no eyewitness to the incident. All the witnesses have stated that they were informed by the prosecutrix about commission of rape by the accused. However, medical evidence does not support the version of the prosecutrix. There are omission and improvement in the statements of the witnesses including the prosecutrix. It has come in the evidence of the witnesses that theft was committed in the house of father of the prosecutrix, for which a village meeting was also convened and they went to lodge report. The prosecutrix also admits that as the Sarpanch had told her that if she lodged report, she would get Rs.25,000/-, hence she lodged the report 12 whereas her father had asked her to lodge report of theft. Thus, close scrutiny of the overall evidence makes it clear that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. The evidence of the prosecutrix is not of sterling quality which can be made basis of conviction of the appellant. Being so, conviction of the appellant under Sections 376(1) and 450 of IPC recorded by learned trial Court is not legally sustainable and liable to be set aside and the appellant deserves to be acquitted of all the charges by giving him benefit of doubt. 23. In the result, the appeal is allowed. The impugned judgment of learned trial Court is hereby set aside. The appellant is acquitted of the charges under Sections 376(1) and 450 of IPC by extending him benefit of doubt. He is reported to be on bail, therefore, his bail bonds shall remain in operation for a period of six months from today in view of provisions of Section 437A of CrPC. Sd/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN