1 2025:CGHC:4954 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 27.11.2024 Judgment delivered on: 28.01.2025 CRA No. 829 of 2005 1 - Bodhan Nishad, S/o Samaru Nishad, Aged About 28 Years, R/o Rata Kat P.S.- Orang, District- Raipur. ... Appellant versus 1 - State of Chhattisgarh Through Police Station- Arang, District- Raipur (C.G.). ... Respondent For Appellant : Ms. Savita Tiwari, Advocate For Respondent/State : Ms. Nand Kumari Kashyap, P.L. Hon'ble Smt. Justice Rajani Dubey CAV Judgment 2 1. This appeal is directed against the judgment of conviction and order of sentence dated 29.09.2005 passed by learned Sessions Judge, Raipur, District- Raipur in Sessions Trial No. 138/2005 whereby, the trial Court convicted the appellant and sentence him as under:- Conviction Sentence U/s 363 of IPC R.I. for 3 years with fine of Rs.1000/- and in default of payment of fine, to undergo additional R.I. for 6 months U/s 366 of IPC R.I. for 5 years with fine of Rs.1000/- and in default of payment of fine, to undergo additional R.I. for 6 months U/s 376(1) of IPC R.I. for 7 years with fine of Rs.2000/- and in default of payment of fine, to undergo additional R.I. for 1 year 2. Case of the prosecution is that the prosecutrix was the minor daughter of the complainant. She was about 13 years old. On 22.1.2005 at about 8.00 p.m., she left the house without informing anyone. Thereafter, she was searched at various places by her father. On searching, she was recovered from the house of the appellant/accused in Ratakat, the village of the accused and thereafter, recovery panchnama was prepared. Subsequently, the complainant reported the incident at Police Station- Arang. The FIR (Ex.P/9) bearing Crime No. 21/2005 was registered for the offence under sections 363, 366 and 376 of the Indian Penal Code. On being asked, prosecutrix told that the accused had lured her by promising marriage and took her away and raped her by forcibly having sexual intercourse with her. The prosecutrix was sent for medical examination. Dr. A. Bose (P.W.-10) 3 conducted the medical examination of the prosecutrix (P.W.-1) and gave her report vide Ex.P/11 “A”. She advised for X-ray for determination of the age of the prosecutrix. Dr. A.K. Gupta (P.W.-11) after the X-ray of the prosecutrix, determined the age of the prosecutrix as 14 years and gave his report Ex. P/20 in this regard. During the investigation, seizures were made and sent for medical examination. Regarding the age of the prosecutrix, Dakhil Kharij register was seized vide Ex.P/2 from the Headmaster- Dhan Singh, Ratakat and according to said register, the date of birth of the prosecutrix was 03.12.1992. Spot map was prepared vide Ex.P/6. Accused/appellant was arrested. Statements of the witnesses were recorded. After due investigation, the charge-sheet was filed against the appellant for the offence punishable under Sections 363, 366 and 376 of IPC against the appellant before the Judicial Magistrate First Class, Raipur and from there, the matter was committed to this Court for trial. The learned trial Court framed the charges against the appellant for the offence punishable under Sections 363, 366 and 376(1) of IPC, to this appellant abjured his guilt and claimed to be tried. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. Appellant/accused did not adduce any evidence in his defence. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 29.09.2005, 4 finding evidence adduced by the prosecution trustworthy, convicted the appellant for the offence under Sections 363, 366 and 376(1) of IPC, and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the prosecution story is totally unbelievable in which the appellant has been falsely implicated. The learned trial Court completely failed to see that the prosecution story was totally unbelievable and not practicable in human life. Statements of the prosecution witnesses are not reliable but the learned trial Court did not appreciate the oral and documentary evidence properly. It is also clear that no admissible evidence filed by the prosecution regarding the age of the prosecutrix. The findings recorded by the learned trial Court are perverse, therefore, the impugned judgment is liable to be set aside. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385. 6. Learned State counsel supports the impugned judgment and states that as per X-ray report, prosecutrix is below 16 years of age, therefore, the learned trial Court rightly convicted the appellant. Hence, the instant appeal being without any merit is liable to be dismissed. 7. Heard counsel for the parties and perused the material placed on record. 8. It is clear from the record of the learned trial Court that the learned trial Court framed the charges under Sections 363, 366 and 376 (1) of IPC. 5 As per the prosecution, at the time of the incident, the prosecutrix was aged about 14 years. 9. Munna Ram Nishad (P.W.-2), father of the prosecutrix stated that the prosecutrix was aged about 13-14 years. In his cross-examination, he stated that he does not know as to in which year he got married. He does not know the date of birth of the prosecutrix. Her date of birth was not registered in Kotwari register. He admitted that he himself went to school to get the prosecutrix admitted in school and at the time of admission, he did not have any birth certificate of the prosecutrix and he told the age of the prosecutrix on his own impressions. 10. Dhan Singh (P.W.-5), teacher of Primary School, stated that he brought Dakhil Kharij register (Ex.P/3) of school along with him before the Court and according to which, the date of the prosecutrix was 03.12.1992 and she got admission in school in class 1 on 04.07.1997. He gave a certificate regarding the date of birth of the prosecutrix vide Ex.P/4. Dakhil Kharij register was seized vide seizure memo (Ex.P/4) by Police Station- Arang wherein he admitted his signature from B to B part. Later on, the Dakhil Kharij register was handed over to him vide supurdnama (Ex.P/5). In his cross-examination, he admitted that on 04.07.1997, he was not posted in Government Primary School, Ratakat. He admitted that the entry made in Ex.P/3 was not done by him. The Headmaster posted at that time, had made the said entry. He further admitted that he did not know as to on what basis the entry was made by the earlier Headmaster. 6 11. Dr. A.K. Gupta (P.W.-11) stated that he conducted the X-ray of the prosecutrix for determination of her age and opined that as per X-ray report (Ex.P/20), the age of the prosecutrix is about 14 years. The X- ray plate attached with the report is Ex.P/20 (A) and 20B. In his cross-examination, he admitted that the climate, environment and diet are also responsible for physical development. 12. It is well settled principle of law that in ossification test, the doctor can only give the range of the age which is always with a possibility of error of 3 years on either side. As regards school register, it is clear that Dhan Singh (P.W.-5) admitted that he did not made any entry in Dakhil Kharij register and also did not know as to on what basis the said entry was made. 13. 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. 7 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 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." 14. In light of aforesaid decision of the Hon'ble Supreme Court, this 8 Court finds that in the present case, 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, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, the finding so recorded by the learned trial Court is set aside and this Court holds that the prosecution has not been able to prove successfully that on the date of incident she was minor. 15. It is well settled law that in the cases of sexual assault, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, in this case, the prosecutrix (P.W.-1) stated that the accused took her to different villages along with him and forcibly committed sexual intercourse with her. In her cross-examination, she admitted that the accused/appellant took her to two-three villages where she met people but she did not tell them about being kidnapped and raped by the appellant. 16. Close scrutiny of the evidence makes it clear that the prosecutrix was a consenting party to the act of the appellant. She went with the appellant and stayed with him of her own free will. Since this Court already observed that the prosecution has failed to prove that on the date of incident she was minor, in the given set of facts and circumstances of the case, no offence is made out against the appellant. 17. In the result, the appeal is allowed and the impugned judgment dated 29.09.2005 of the learned trial Court is hereby set aside. The appellant is acquitted of the charges under Sections 363, 366 and 9 376(1) of IPC. 18. The accused/appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provisions of Section 437-A of CrPC. 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. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV