1 2025:CGHC:16037 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 402 of 2007 1 - Umesh Kumar @ Bhuru Aged About 21 Years R/o Village Dongarigaon, Police Station Gariyaband, District - Raipur (C.G.) Appellant versus 1 - State Of Chhattisgarh through Police Station Gariyaband, District Raipur (C.G.) Respondent For Appellant : Mr. Ashok Patil, Advocate For Respondent : Ms. Nand Kumari Kashyap, PL Hon’ble Smt. Justice Rajani Dubey Order on Board 04/04/2025 1. The present appeal is directed against the judgment of conviction and order of sentence dated 25.04.2007 passed by the learned Additional Session Judge, Gariyaband, District Raipur (C.G.) in ST No.1/2007, whereby the appellants have been convicted under Sections 363 & 366 of IPC and sentenced to undergo RI for 3 months with default stipulations. 2. The prosecution case, in brief, is that on 14.11.2005 at about 4 pm, the grandfather of the prosecutrix lodged a missing report of Digitally signed by RAMAKANT NIRALA 2 the prosecutrix, upon which a case was registered and the prosecutrix was recovered from the possession of the appellant and a case was registered against the appellant. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The appellant neither took the victim from her house nor made any attempt to commit sexual intercourse with her. Learned Trial Court has illegality convicted the appellant under Sections 363 & 366 of I.P.C. The impugned judgment is arbitrary, perverse and contrary to provision of evidence Act. The important witnesses have been declared hostile and no one has stated against the appellant that he has taken the prosecutrix from her house. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385. 4. Per contra, learned State counsel supports the impugned 3 judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 363, 366 & 376 of IPC against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court acquitted the appellant of the offence under Section 376 of IPC and convicted the appellant for the offence under Sections 363 & 366 of IPC, as mentioned in para 1 of the judgment. 7. As per the prosecution, on the date of incident, the prosecutrix was below 16 years of age. The prosecutrix (PW-1) stated in para 1 that the accused eloped her with him and she was lived with the accused for 14 days at Raigarh. In para 15 of the cross- examination, she admitted that while going in bus, she did not raise any alarm to anyone and even at Raigarh also, she did not tell anyone that the accused eloped her, as such the conduct of the prosecutrix shows that she went with the accused on her own will. She further stated that her date of birth is 03.01.1990. Dayadhar @ Ghasiram (PW-4), father of the prosecutrix stated that he is Kotwar at Village Gariyaband after his father’s 4 superannuation and he stated that he has brought register of death and birth and as per this register, the date of birth of the prosecutrix is 03.01.1989. Smt. K.L. Shrivastava (PW-8), principal of girls higher secondary school, Gariyaband, District Raipur stated that as per dakhil kharij register, the date of birth of the prosecutrix is 03.01.1990. The register is Ex-P/11. She also stated that the prosecutrix was admitted in school on 08.07.2002, whereas she left the school on 03.04.2004. In the cross- examination, she admitted that this entry was not made by her and as to who made this entry she does not know. 8. It is clear from the statement of principal that the date of birth of the prosecutrix is 03.01.1990 and as per Dayadhar @ Ghasiram (PW-4) Kotwar at Village Gariyaband, the date of the birth of the prosecutrix is 03.01.1989. He also admitted in his cross- examination that as to who made this entry in register (Ex-P/10) he does not know. PW-8 Smt. K. L. Shrivastava, principal also admitted that the entry in the register was not made by her and she may not tell as to who made this entry. 9. 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 5 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. 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.” 10. The learned Trial Court did not appreciate this fact that both the witnesses stated different dates of birth and in criminal case burden of proof is on the prosecution to prove the same. It should be proved beyond reasonable doubt by the prosecution that on the date of incident, the prosecutrix is below 16 years of age, but in this case the prosecution has utterly failed to prove this fact that on the date of incident, the prosecutrix was below 16 or 18 years of age. The learned Trial Court acquitted the appellant of 6 the offence under Section 376 of IPC on the basis of the medical report and even no FSL report was submitted by the prosecution to corroborate the fact that the appellant has committed sexual intercourse with the prosecutrix. The seizure witnesses have also not supported the case of the prosecution, as such the learned Trial Court has rightly acquitted the appellant of the offence under Section 376 of IPC, but the prosecution has utterly failed to prove the age of the prosecutrix below 18 years of age, as such the finding recorded by the learned Trial Court regarding conviction of the appellant under Sections 363 & 366 of IPC is not sustainable, as the prosecutrix was major on the date of incident and she on her own will went with the accused, as is evident from her statements and conduct. 11. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Sections 363 & 366 of IPC. 12. The appellant is reported to be on bail. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith. The bail bond furnished by the appellant shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid 7 appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 13. 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/- Rajani Dubey Judge Nirala