1 2025:CGHC:29324-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 795 of 2019  Rahul Bhardwaj, S/o Late Shri Ramdas Bhardwaj, Aged About 18 ½ Years, R/o Village- Charpara, Thana- Kharsiya, Civil And Revenue District- Raigarh, Chhattisgarh. ... Appellant versus  State Of Chhattisgarh Through The District- Magistrate, Raigarh, District- Raigarh, Chhattisgarh. ...Respondent For Appellant. - Mr. Sunil Sahu, Advocate. For Respondent - Mr. Abhishek Singh, P.L. Hon'ble Smt. Justice Rajani Dubey & Hon’ble Shri Justice Amitendra Kishore Prasad Judgment On Board 01/07/2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 28.03.2019 passed by the In- 2 charge, Additional Sessions Judge, F.T.C., Raigarh, District Raigarh (C.G.) in Special Criminal Case under the POCSO Act No. 82/2015 convicting and sentencing the accused/appellant as under :- Conviction Sentence Under Section 366 of IPC R.I. for 03 years and fine of Rs.1,000/-, in default of fine amount, to undergo additional R.I. for 01 months. Under Section 376(3) of IPC R.I. for 20 years and fine of Rs.5,000/-, in default of fine amount, to undergo additional R.I. for 05 months. Under Section 6 of POCSO Act, 2012 R.I. for 10 years and fine of Rs.2,000/-, in default of fine amount, to undergo additional R.I. for 02 months. 2. As per the prosecution case, on 01-10-2018, the father of prosecutrix (PW-3) lodged a report in Kharsia police station to the effect that his minor girl Prosecutrix (PW-2), aged 14 years, was sleeping in the house. In the morning, when they got up and looked around, the prosecutrix (PW-2) was not in the house. They searched the prosecutrix (PW-2) in the neighbourhood. The family members of the Prosecutrix suspected the accused/appellant that he lured the prosecutrix and taker her with him somewhere else as on that date he was also not in the village. Thus, on the basis 3 of the said report, an FIR being Crime No.648/2018 was registered against the accused/appellant for the offence punishable under Section 363 IPC and the case was investigated. On 06-10-2018, the accused/appellant brought the prosecutrix to the police station. On being questioned, the prosecutrix told that she had called the accused/appellant saying that she would die if he (accused/appellant) did not come to take her, and went with him to Calcutta by train where they took a room on rent, got married in a temple and lived there & during this period the accused/appellant had consummated the marriage. After necessary investigation, statements of the witnesses were recorded. The accused/appellant was arrested and after completing usual investigation, charge sheet was filed before the jurisdictional Court against the accused/appellant under Sections 363, 366, 376 of the Indian Penal Code and Sections 4, 6 of POCSO Act, 2012. 3. The learned trial Court framed charges against the accused/appellant under Sections 363, 366, 376 (2)(n), 376 (3) of IPC and Section 6 of POCSO Act, 2012. 4. So as to hold the accused/appellant guilty, the prosecution examined as many as 06 witnesses. Statement of the accused/appellant was also recorded under Section 313 of 4 Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence is contrary to the law and material available on record, which deserve to be set aside. According to the prosecution, the incident took place prior to 3 years of the date of lodging of the FIR and the Prosecutrix has admitted that she had called the appellant and went with him of her own and had physical relation after performing the marriage, as such, the offence under Section 376 (3) of IPC is not made out as the prosecution has failed to establish the fact that the prosecutrix was below 16 years of the age at the time of incident. Learned counsel further submits that the learned trial court did not consider the fact that the prosecution has not proved the age of the prosecutrix to be below 18 years by cogent and reliable evidence as the Kotwari Panji was recorded by the son of PW-1 Sonati Bai and he was not 5 examined to proved that on what basis the entry was made and PW-1 categorically stated that she did not know that who informed the date of birth even she did not know that whose name was entered in Exb. P-29. Thus, it is clearly established that the prosecutrix was more than 16 years of the age at the time of incident and she has performed the marriage with the appellant. Further, the prosecutrix has admitted in para 13 of her cross examination that her date of birth is not 03.09.2004 and she informed the same only on the basis of the entry made in Marksheet and further she admitted that when the appellant was taken in the custody she consumed the poison. Learned counsel also submits that the learned trial Court did not consider the omission and contradiction in the statement of prosecution witnesses and relying upon the evidence with regard to age convicted the appellant, which is not sustainable. The learned trial Court did not consider the evidence of PW-3 father of the Prosecutrix wherein he has stated that he did not know the date of birth of the prosecutrix and has clearly admitted that he had not given any documents regarding her age at the time of admission in the school. The finding recorded in para 10 of the impugned judgment regarding the age is contrary to material available on record because PW-1 Sonati Bai 6 has not recorded the date of Birth in the Kotwari register and she did not know on what basis the age was recorded, therefore, the prosecution has utterly failed to prove that the prosecutrix was below 18 years of the age at the time of incident. 7. Learned counsel also submits that the prosecutrix in para 04 to 07 of her evidence has admitted that after marriage she had developed physical relation on number of occasions and she herself appeared before the police station when she came to know about lodging of FIR by her father, as such, she appears to be a consenting party to the act of the appellant. The learned trial Court did not consider the evidence of PW-1 Sonati who in para 2 and 3 clearly admitted that she did not know the basis on which the date of birth of the prosecutrix was recorded and further admitted that she did not know whose name was entered in the register, therefore also, the conviction of the appellant is not sustainable as the date of birth of the prosecutrix has not been proved beyond reasonable doubt. The learned trial court convicted the appellant on the basis of the evidence of Prosecutrix as well as the investigation officer without considering the fact that other independent witnesses have not supported the case of the prosecution and turned 7 hostile, therefore, the impugned judgment deserves to be set aside by acquitting the appellant from the charges. Learned counsel also submits that the prosecution has not made any effort to obtain the actual date of birth of the prosecutrix or determine the age from the ossification test. There is contradiction regarding the actual age of the prosecutrix for the reason that the doctor who medically examined the prosecutrix has stated that prosecutrix was fully developed girl and habitual for sexual intercourse, which undoubtedly makes it clear that she was more than 18 years of the age. Thus, considering all the aforesaid circumstances, the appeal deserves to be allowed setting aside the impugned judgment. 8. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance law and there is no infirmity in the same. 9. I have heard learned counsel for the parties and perused the material available on record. 10. It is clear from the record of the learned trial Court that the learned trial Court framed charges against the accused/appellant under Sections 363, 366, 376(2)(3) (n) of IPC and Section 6 of POCSO Act, and after appreciation of 8 oral and documentary evidence, the learned trial Court convicted the accused/appellant as mentioned in para 1 of the judgment. 11. The question which arises for consideration before this Court is whether the Prosecutrix on the date of incident was minor ? 12. According to the prosecution, the date of birth of the prosecutrix (PW-2) is 03.09.2004 and the learned trial Court recorded the finding that on the date of incident i.e. 01.10.2018, she was below 16 years of age and thus minor. 13. Sonati Bai (PW-1) is Kotwar of village Charpara. She has stated that she is illiterate, therefore, her son Anil Kumar records the entry of death and birth on the information of the villagers. She has also stated that the police personnel sought information from her regarding the date of birth of the prosecutrix then her son Anil told the police about the date of birth of the prosecutrix to be 03.09.2004 and the date of entry was 08.09.2004. She has submitted the kotwari birth information counter with the police under Ex.P-29. In cross- examination, this witness has admitted that all the entries in the kotwari register were made by her son Anil Kumar and she did not know the date of birth of the prosecutrix and by whom and when was her date of birth registered. She has 9 also admitted that she did not know whose name was written in Ex.P-29. This witness has also admitted this suggestion that she cannot sign and only put her thumb impression. In deposition sheet also, this witness has put her thumb impression at the bottom. 14. Prosecutrix (PW-2) has stated that her date of birth is 03.09.2004. The prosecutrix, in para 13 of her cross- examination, admitted this suggestion of defence that her date of birth is not 03.09.2004, and only on the basis of report card, she is stating her date of birth as 03.09.2004. 15. Father of prosecutrix (PW-3) has also admitted this suggestion of defence that he had not taken any document regarding the birth of the his daughter at the time of admission in the school and he had not told about the date, month and year of his daughter & the school authority had written the date of birth of his daughter as per estimation. He has also admitted that the Kotwar had not given any document when he had taken his daughter for admission in the school. 16. The aforesaid testimony of village Kotwar (PW-1) is sufficient to draw an inference that she is not the author of entry of date of birth of prosecutrix (PW-2) in kotwari register and the same was recorded by her son Anil Kumar but the 10 said Anil Kumar was not examined by the prosecution to prove the age and date of birth of the prosecutrix. Further, the father of the prosecutrix (PW-3) has also not spelled about the actual date of birth of his daughter and merely on estimation, the school authority has written the date of birth of the prosecutrix as 03.09.2004. The prosecution, in order to establish the sanctity of entry of date of birth of the prosecutrix made in the kotwari register, had to examine the Ashok Kumar as the village Kotwar (PW-1) has categorically stated that she is illiterate and entry in the kotwari register was being made by her son, but they have failed to do so. Thus, it would not be safe for this Court to rely upon such document. That apart, the prosecution has also not filed birth certificate of the Prosecutrix or copy of school admission register of the Prosecutrix to corroborate the factum of date of birth of the Prosecutrix. In this case, though the report card of the Prosecutrix discloses the date of birth of the Prosecutrix as 03.09.2004 but in the absence of any material to show as to on what basis such entry was made, it is rendered wholly meaningless. It was the bounden duty of the prosecution to prove this fact by examining the author who has entered such date of birth but all this has not been done. Even the parent (father of the 11 prosecutrix) did not spell about the actual date of birth of the Prosecutrix. It is settled in law that only on the basis of date of birth of the Prosecutrix on mark list or the school admission register, no inference can be drawn regarding age of the Prosecutrix unless the same is corroborated by the substantive piece of evidence. 17. 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 12 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. 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 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 13 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.” 18. In the light of aforesaid judgment of Hon’ble Apex Court in Alamelu (supra), this Court finds that apart from kotwari register (Ex.P-29), whose real author was not examined and the basis of the date of birth was not known & report card (Article A-1), there is no clinching and legally admissible evidence on record to prove that the Prosecutrix, on the date of incident, was below 18 years of age. In absence of any incriminating evidence regarding date of birth of the Prosecutrix (PW-2), it would be very difficult for this Court to arrive at finding that the Prosecutrix was minor at the time of incident. Thus, this Court set aside the finding of the learned trial Court holding the Prosecutrix to be minor. 19. It is apparent from the statement of Prosecutrix (PW-2) that the accused/appellant does not like her and when she said multiple times that she loves him then after one year the 14 accused/appellant said ‘yes’. She has also stated that she wanted to marry the accused/appellant, to which, the accused/appellant told that when she attaines the majority he would talk to her father. She has also stated that she had informed all these to her parents but her parents refused to perform marriage with accused/appellant. She has also stated that she had ringed the accused/appellant and said that her family members not let her to marry him, take her somewhere, then the accused/appellant told her that he would not elope with her but will take her after marrying her. She has also stated that she had told the accused/appellant that if he do not take her with him then she would consume poison and die, then the accused/appellant got very scared and got ready to take her. She has also stated that thereafter she went to Sakti along with his friend and from there she and the accused/appellant went to Kolkata in train where they took a room on rent and performed marriage in a Durga temple and establish physical relation. In cross- examination, she has also admitted that the accused/appellant is her uncle in relation and their gotra are same and therefore, the family members were not ready for their marriage. She has also admitted this suggestion that the accused/appellant did not take her forcefully and she 15 accompanied the accused/appellant of her own, the accused/appellant did not use force for marriage and the marriage was performed with her consent. Further, in para 15 of her cross-examination, she had admitted the suggestion of defence that she had consumed poison when the accused/appellant was sent to jail. 20. The father of prosecutrix (PW-3) has also admitted this suggestion of defence in para 7 that his daughter had consumed poison after filing of complaint against the accused/appellant. 21. Dr. Hemlata Rathiya (PW-5) has stated that the prosecutrix (PW-1) was brought before her for medical examination and she medically examined the prosecutrix and found no external or internal injury on her body and opined that she was habitual for sexual intercourse and gave her report under Ex.P-14/A. 22. The aforesaid testimony of Prosecutrix (PW-2) clearly goes to show that she was in love with the accused/appellant and she accompanied the accused/appellant of her own, performed marriage with her consent and came to disposal of the accused/appellant without offering any protest. The conduct and the statement of the Prosecutrix in not resisting the act of the accused and submitting herself to his disposal 16 speaks in volumes regarding her clear cut consent but the learned trial Court did not appreciate this fact and recorded perverse finding. In these circumstances, the appellant is definitely entitled to be acquitted of the charges leveled against him by extending him benefit of doubt. 23. In the result, the appeal is allowed. Conviction of the accused/appellant under Sections 366, 376(3) of IPC and Section 6 of POCSO and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charges by extending him benefit of doubt. 24. The 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 provision of Section 437-A of Cr.P.C. (new Section 481 of BNSS). 25. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) JUDGE JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE