1 2025:CGHC:4505 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 43 of 2022 Bhupendra Chauhan S/o Shri Manharan Lal Chauhan Aged About 26 Years R/o Village Dhuma P.S. Sargaon District Mungeli Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through District Magistrate Mungeli, District Mungeli Chhattisgarh. ... Respondent For Appellant : Mr. Dheerendra Pandey, Advocate. For Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer. Hon'ble Smt. Justice Rajani Dubey, J Judgment On Board 24/01/2025 Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 17.12.2021 passed by the Special Judge (FTSC), POCSO Act, Mungeli in Special Criminal Case No.26/2019 whereby the appellant stands convicted under Section 376 of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short "the Act of 2012") and keeping in 2 view the provisions of Section 42 of the Act of 2012, sentenced under Section 6 of the Act of 2012 to undergo RI for 10 years, pay a fine of Rs.5,000/- and in default thereof to suffer additional SI for three months. 02. Case of the prosecution, in brief, is that on 17.7.2019 the prosecutrix made a written complaint that in January, 2019 she was called by the appellant near school and when she went there at 7.00 pm, the accused/appellant caught hold of her and forcibly had sexual intercourse with her on the threat of life. Thereafter he continued to have sexual intercourse with her for the last six months as a result of which she got pregnant. She narrated the whole incident to her parents and then on her report offence under Sections 376, 506 of IPC and Sections 4 & 6 of the Act of 2012 was registered against the accused/appellant. 03. During investigation, medical examination of the prosecutrix was got done, her statement under Section 164 of CrPC was recorded, spot map was prepared and statements of witnesses were recorded. After completing the usual investigation, charge sheet under Sections 376, 506 of IPC and Section 4 & 6 of the Act of 2012 was filed against the accused before the concerned jurisdictional Magistrate. Learned trial Court framed charges under Section 376, 506 Part-II of IPC and Section 6 of the Act of 2012, to which the accused/appellant abjured his guilt and prayed for trial. 3 04. In order to substantiate its case the prosecution examined 12 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, he did not examine any witness in defence. 05. 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. 06. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. There is no conclusive evidence on record to connect the appellant with the crime in question. The findings of learned trial Court are based on mere conjecture and surmises. Even assuming the whole prosecution case as it is, no offence under Section 6 of the Act of 2012 is made out against the appellant. There are many contradictions and omissions in the statements of the prosecution witnesses which have been overlooked by learned trial Court. The evidence on record clearly suggests that the prosecutrix was a consenting party to the act of the appellant and did not disclose her relation with the appellant to her mother and father for a considerable period. As regards age of the prosecutrix, the prosecution has failed to prove that she was minor on the date of incident. There is no such 4 reliable and clinching evidence adduced by the prosecution regarding minority of the prosecutrix. For all these reasons, the impugned judgment is not legally sustainable and hence the appellant deserves to be acquitted of all the charges. Reliance has been placed on the decision of the Hon’ble Supreme Court in the matter of Uday Vs. State of Karnataka reported in (2003) 4 SCC 46 and in Deepal Gulati Vs. State reported in (2013) 7 SCC 675. 07. On the other hand, learned counsel for the State opposing the contention of the appellant submits 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. 08. Heard learned counsel for the parties and perused the material available on record. 09. It is clear from the record of learned trial Court that the appellant was charged under Sections 376, 506 Part-II of IPC and Section 6 of the Act of 2012 and after appreciation of oral and documentary evidence, learned trial Court while acquitting him of the charge under Section 506 Part-II of IPC, convicted and sentenced him as mentioned in para 1 of this judgment. 5 10. First of all, this Court proceeds to examine the evidence on record to ascertain whether on the date of incident the prosecutrix was below 18 years of age or not? 11. PW-1 prosecutrix states that she does not remember her date of birth. In cross-examination she admits that she is two years younger to her sister Sakun who would be about 25-26 years at present. In para 05 of her cross-examination she admits that at present she is 21-22 years. 12. PW-2 mother of the prosecutrix admits that her eldest daughter is getting 26-27 years at present and after her birth, she delivered twins and thereafter the prosecutrix was born. She admits that she admitted the prosecutrix to school and got her estimated age recorded in the school. She also admits that while admitting the prosecutrix to school, no birth certificate of her was submitted. 13. PW-3 father of the prosecutrix states that he does not remember the age of the prosecutrix. 14. PW-4 Rakhi Rajput, Incharge Head Mistress, states that the police seized original Dakhil-Kharij register of the school regarding age of the prosecutrix vide seizure memo Ex.P/8. As per said register, date of birth of the prosecutrix is 10.8.2004 and she was admitted to school on 29.6.2010 in Class-1 and she left the school on 30.4.2015. The original Dakhil-Kharij register is Ex.P/9 and its attested copy is Ex.P/9C 6 which bears her signature from A to A part. In cross-examination she admits that she did not admit the prosecutrix to school and that she cannot tell as to on what basis her date of birth was recorded while being admitted to the school. She states that she was not posted at the school at the time of her admission. 15. 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:- "The age of a person as recorded in the school register 7 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." 16. 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 the date of birth. It was further reiterated that if the date of birth is 8 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 fair to convict the accused, particularly when the age of the 9 prosecutrix was such a crucial factor in the case.” 17. In the case in hand, though in the Dakhil-Kharij register (Ex.P/9) the age of the prosecutrix is recorded as 10.8.2004 but PW-4 Head Mistress in cross-examination has admitted that entry in Ex.P/9 was not made by her and she does not know as to on what basis the said date of birth was entered in the Dakhil-Kharij register. Further, statements of the prosecutrix and her family members also do not disclose the date of birth of the prosecutrix or even suggest that she was minor on the date of incident. Rather their evidence suggests that she was above 18 years of age at the relevant time. Thus, in light of aforesaid decisions of the Hon'ble Supreme Court, this Court is of the opinion 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 hereby set aside and it is held that she was major on the date of incident. 18. Now it is to be seen whether the appellant had committed forcible sexual intercourse with the prosecutrix or it was a consensual act? 19. PW-1 prosecutrix states in her deposition that she was impregnated by the accused regarding which she made a written 10 complaint to the police vide Ex.P/1 which bears her signature from A to A part. In cross-examination she admits that in the written complaint of Ex.P/1 as also in the FIR, there is no mention of day and date. She also admits that she did not disclose the incident to anyone for six months. She denied the suggestion that she had love affair with the accused. However, she admits that the police arrested other boys of the village also but they were later released and the accused was detained. She denied the suggestion that they have enmity with the accused and his family and that she is making false statement at the instance of her parents. 20. PW-2 mother of the prosecutrix states that seeing the physical changes in the prosecutrix when she asked about it, she disclosed that the accused has committed immoral act with her as a result of which she got pregnant. She took the prosecutrix to hospital for medical examination where the doctor informed her that the prosecutrix is four months pregnant. Thereafter a village panchayat was held where she was advised to lodge a report and so a report was lodged by the prosecutrix against the accused. In cross-examination she admits that her daughter/prosecutrix did not inform her about the incident and it was disclosed only when there were physical changes in her body. Though she denies the suggestion that the prosecutrix had illicit relation with other boys of the village but admits that those boys were also detailed by the police in this case but later on released. She denies the suggestion that she is falsely implicating the accused or that 11 prior to the incident they have had quarrel with the accused. However, she volunteers that after the incident the accused had made them run for his false implication. 21. PW-3 father of the prosecutrix deposes that it is the appellant who committed immoral act with the prosecutrix as a result of which she got pregnant and delivered a female child. He admits that he has not produced any document regarding paternity of the child of the prosecutrix. 22. PW-5 Dr. Priti Bala medically examined the prosecutrix on 17.7.2019 and noticed that there were no sign of any injury on her body and she was carrying pregnancy of 24 to 26 weeks. In her opinion, the prosecutrix was habitual to sexual intercourse. 23. Close scrutiny of the evidence makes it clear that the prosecutrix was a consenting party to the act of the accused/appellant. Learned trial Court has also held that she was a consenting party but considering the fact that she is below 18 years of age, held the appellant guilty of the aforesaid crime. She admitted in her deposition that she did not disclose her relationship with the appellant for six months to anyone. Mother of the prosecutrix states that when she noticed physical changes in the prosecutrix she enquired from her and then only she narrated the whole incident to her. From the statement of the prosecutrix under Section 164 of CrPC also it is clear that physical relation between the appellant and the prosecutrix was consensual. 12 Statements of mother and father of the prosecutrix also nowhere suggest that the appellant had forcible sexual intercourse with the prosecutrix. Thus, considering the manner in which the incident took place, the conduct of the prosecutrix during the said incident and subsequent thereto, this Court finds that the learned trial Court rightly recorded the finding that prosecutrix was a consenting party to the act of the appellant. However, it has fallen into error while assessing the age of the prosecutrix and holding her minor on the date of incident. As already observed in the preceding paragraph, the prosecution based on the evidence adduced by it has utterly failed to prove that she was a minor at the relevant time. In these circumstances, conviction of the appellant under Section 376 of IPC and Section 6 of the Act of 2012 is legally not sustainable. 24. In the result, the appeal is allowed. The impugned judgment is hereby set aside and consequently, the appellant is acquitted of the charges under Section 376 of IPC and Section 6 of the Act of 2012. The appellant is reported to be in jail, therefore, he be set free forthwith if not required in any other case. Keeping in view the provisions of Section 437-A of CrPC, appellant is also directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure of 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 13 an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 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 Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN