1 2025:CGHC:38731 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 729 of 2013 1 - Phool Singh, S/o Kanshiram Yadav, Aged About 22 Years, R/o Jarve, PS Palari, Distt. - Raipur Now Civil Distt. Raipur, Revenue Distt. - Baloda Bazar - Bhatapara C.G. ... Appellant versus 1 - State of Chhattisgarh Through: Station House Officer, Police Station- Palari, Distt. Raipur C.G. ... Respondent(s) For Appellant : Ms. Ritika Verma, Advocate For Respondent(s)/ State : Ms. N.K. Kashyap, P.L. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 05/08/2025 1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the the judgment of conviction and order of sentence dated 22.06.2013 passed by learned First Additional Sessions Judge, Balodabazar, District- Raipur (C.G.) in S.T. No. 2 45/2012 whereby the accused/appellant has been convicted under Sections 363, 366 and 376 of IPC and sentenced to undergo R.I. for 3 years and fine of Rs.200/-, in default of payment of fine further R.I. for 1 month, R.I. for 4 years and fine of Rs. 300/-, in default of payment of fine further R.I. for 2 months and R.I. for 7 years and fine of Rs.500/-, in default of payment of fine further R.I. for 3 months respectively with a direction to run sentences concurrently. 2. Case of the prosecution is that the complainant aged about 15 years, had gone to Sarona brick kiln to work with her parents. The accused Phool Singh also worked there and the complainant knew him. The complainant came to her home in Village Sitapar. On 28/06/2012, the accused came to the complainant's house and gave the money to her father for the work done in the brick kiln. The accused is a resident of village Jarve and had come to the village of the complainant and stayed in her house. On 29/06/2012, at night, the accused lured the complainant to make him his wife and had sexual intercourse with her. The accused took the complainant/prosecutrix to Raipur by bus via Lavan, Balodabazar and from there took her to a village near Bhopal by train, where the complainant and the accused worked as porters and masons. The accused used to have sexual intercourse with the complainant at night. A missing report was lodged by father of the complainant at police station- Palari. On 20/07/2012, when prosecutrix came home, the family members of the prosecutrix took her to Police Station- Palari where a recovery memo was prepared. Prosecutrix lodged first information report against the appellant. After obtaining the consent of the parents of the prosecutrix, medical examination of the prosecutrix was got done. Seizures were made. The spot map was 3 prepared. The complainant’s mark sheet was obtained. The statements of the witnesses were recorded. The seized articles were sent for chemical examination. Accused was arrested. After completion of usual investigation, the charge-sheet was filed before the concerned Judicial Magistrate First Class Baloda Bazar from where the case was committed to trial Court for trial on transfer. The learned trial Court framed the charges under Sections 363, 366 and 376 of IPC, to which he abjured his guilt and claimed to be tried. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, he 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 22.06.2013, finding evidence adduced by the prosecution trustworthy convicted the appellant under Sections 363, 366 and 376 of IPC and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment is perverse, erroneous, illegal and contrary to law, facts and circumstances of the case. The learned trial Court ought not to have convicted the appellant as it is clear from the evidence of prosecutrix (P.W.-3) that she had neither reported the matter to the Police nor stated anything to any person when she was working as a labour with the appellant. There is no conclusive evidence on record to connect the 4 appellant with the crime in question. The evidence on record clearly suggests that the prosecutrix was a consenting party to the act of the appellant. 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 reliable and clinching evidence adduced by the prosecution regarding minority of the prosecutrix. The prosecution case is based on improvable and unreliable evidence, therefore, the judgment of conviction and sentence imposed on the appellant/accused is liable to be set aside. In support of his contention, she has placed reliance on this Court’s judgment dated 24.01.2025 passed in CRA No. 43 of 2022 {Bhupendra Chauhan Vs. State of Chhattisgarh}. 6. On the other hand, learned counsel for the State opposes and contends that from the evidence available on record, it is clear that the victim was minor at the time of incident. Therefore, there is no illegality or infirmity in the findings of the learned trial Court. As such, the impugned judgment of conviction and sentence is well merited and does not call for any interference by this Court. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is clear from the record of learned trial Court that the appellant was charged under Sections 363, 366 and 376 of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him as mentioned in para 1 of this judgment. 9. 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? 5 10. Prosecutrix (P.W.-3) stated that she has no knowledge about her age. 11.Mother of the prosecutrix (P.W.-4) stated that her daughter was aged about 15 years on the date of incident. In her cross-examination, she stated that she does not remember the date of birth of the prosecutrix. 12. Father of the prosecutrix (P.W.-5) also stated that the age of the prosecutrix is between 15 and 16 years. In his cross-examination, he stated that he did not know the date of birth of the prosecutrix. He admitted that he had estimated his daughter's age to be 15-16 years which can be more. 13. Prosecutrix (P.W.-3) filed her 5th Class mark-sheet vide Ex.P/15 and as per the said mark-sheet, the date of birth of the prosecutrix is 28.04.1997. 14. Dr. Anita Verma (P.W.-7) advised the prosecutrix to got her X-ray done. Thereafter, in her medical report (Ex.P/7), she opined that as per X-ray report, the age of the prosecutrix could be less than 16 years or could be two years more. In her cross-examination, she admitted that she is not a radiologist and orthopedic specialist and only radiologist and orthopedic specialist can give a definite opinion regarding development of bones. 15. This Court in the matter of Bhupendra Chauhan (Supra) held in paras 15 and 16 as under:- 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 6 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 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 7 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 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 8 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 prosecution was such a crucial factor in the case.” 16. In the case in hand, though in 5th class mark-sheet of the prosecutrix, the date of birth of the prosecutrix is recorded as 28.04.1997 but prosecution did not examine principal of school or file any Dakhil Kharij register which can prove this fact that as to on what basis, the entry with regard to date of birth of the prosecutrix was made in the marksheet (Ex.P/15). Further, statements of the prosecutrix and her parents also do not disclose the date of birth of the prosecutrix or even suggest that she was minor on the date of incident. Medical evidence also does not support the prosecution case regarding the age of the prosecutrix. 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. 17. Now it is to be seen whether the appellant has committed forcible 9 sexual intercourse with the prosecutrix? 18. Prosecutrix (P.W.-3) states in her deposition that when she came home from the brick kiln, the accused came to her house from his village Jarve and stayed there for the night and the next day the accused took her with him to Bhopal. The accused took her from her village to Lavan, then from there he brought her to Balodabazar in a jeep, then from Balodabazar, he took her to Raipur. From Raipur the accused took her to Bhopal by train. In Bhopal where there was labour work, the accused kept her in a house. She further states that in Bhopal, the accused had a relationship with her like a husband and wife. She states that her family members told her over the phone that her grandmother was unwell, so she came back home after 15-20 days with the accused. Later on, she went to Police Station- Palari and lodged FIR (Ex.P/5) against the accused. In para 7 of her cross-examination, she admitted that she did not tell her parents about going with the accused and she went with him. In para 8, she admitted that wherever she went with the accused, she did not tell anyone about going with the accused. In para 9, she admitted that there were many labourers and their families living near the place where they lived in Bhopal, she did not complain to the people living nearby. Further, she admitted that they used to earn and live happily and peacefully. In para 10, she further admitted that the accused/appellant never stopped her from talking to her parents. In para 11, she admitted that she went to Bhopal of her own free will. The accused never committed forcible sexual intercourse with her. 19. Close scrutiny of the evidence makes it clear that prosecutrix was a 10 consenting party to the act of the 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 that appellant guilty of the aforesaid crime. From the evidence of the prosecutrix, it is clear that physical relation between the appellant and the prosecutrix was consensual. 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 Sections 363, 366 and 376 of IPC is legally not sustainable. 20. In the result, the appeal is allowed. The impugned judgment is hereby set aside and consequently, the appellant is acquitted of the charges under Sections 363, 366 and 376 of IPC. The appellant is reported to be in jail, therefore, he be set free forthwith if not required in any other case. 21. Keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith 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 11 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 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 22. 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 Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV