1 2025:CGHC:17981 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1127 of 2013 1 - Vishwanath Sahu S/o Gopal Sahu Aged About 26 Years R/o Village Murmuri, Thana Saraypali, Civil and Revenue, Distt. Mahasamund, Chhattisgarh Appellant versus 1 - State Of Chhattisgarh Through the District Magistrate Mahasamund, Chhattisgarh Respondent(s) For Appellant : Mr. Sumit Shrivastava, Advocacte For Respondent(s) : Ms. Nand Kumari Kashyap, PL Hon’ble Smt. Justice Rajani Dubey Order on Board 21/04/2025 1. The present appeal is directed against the judgment of conviction and order of sentence dated 05.09.2013 passed by the learned Additional Session Judge (FTC), Mahasamund (C.G.) in ST No.68/2012, whereby the appellants have been convicted under Sections 363 & 366 of IPC and sentenced to undergo RI for 4 years with default stipulations. Digitally signed by RAMAKANT NIRALA 2 2. The prosecution case, in brief, is that the brother of the prosecutrix, aged about 17 years, lodged a missing report at the concerned police station, upon which a case was registered and the prosecutrix was recovered from the possession of the appellant on 30.04.2012. The prosecutrix stated that the appellant enticed her and took her to Narsinghpur on the pretext of marriage and committed sexual intercourse with her. Thereafter 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 age of the prosecutrix is also not proved by the prosecution, inasmuch as on what basis the entry was made on the school register was also not proved, 3 as such no case is made out against the appellant. Therefore, the appeal deserves to be allowed. 4. Per contra, learned State counsel supports the impugned 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 framed charges under Sections 363, 366 & 376 (1) of IPC against the appellant and after appreciation of oral and documentary evidence available on record, the learned Trial Court acquitted the appellant under Section 376 (1) of IPC and convicted him under Sections 363 & 36 of IPC and sentenced him, as described in para 1 of the judgment. 7. The learned Trial found that the prosecutrix is consenting party and she is above 16 years of age and below 18 years of age and acquitted the appellant of the offence under Section 376 (1) of IPC and convicted him under Sections 363 & 366 of IPC so now this Court has to examine that on the date of incident, what was the age of the prosecutrix. 8. As per prosecutrix (PW-2), her date of birth is 08.10.1993 and she filed mark sheet of Class 5th, which was seized as per 4 seizure memo (Ex-P/4). Laxmi Prasad (PW-6) stated that he was kotwar of Village Murmuri, Police Station Saraipali. He registered the date of birth of the prosecutrix but his kotwari register was destroyed due to drenching in rainy water. In the cross- examination, he stated that he did not remember what was the date of birth of the prosecutrix. PW-7 Smt. Sarita Minj, Teacher of Primary School, Murmuri stated that in dakhil kharij register (Ex- P/9), the date of birth of the prosecutrix is mentioned as 08.10.1993. In the cross-examination, she admitted that when prosecutrix was admitted in school, she was not posted in the school. She does not know who admitted her and who made entry in the register (Ex-P/9). The learned Trial Court on the basis of the mark sheet and dakhil kharij register gave finding that the prosecutrix is aged about 17 years, 9 months & 23 days at the time of incident, but it is clear from the statement of PW-7 that she was not the author of entry made in the register. 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 School and has been duly signed by the Headmaster. Therefore, it 5 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 6 Article 21 of the Constitution, as in that case the accused may unjustly be convicted.” 10. In light of the above principle, it is clear that the prosecution has failed to prove that at the time of incident, the prosecutrix was below 18 years of age. The learned Trial Court found that the prosecutrix is consenting party and she went with the accused on her own will and accordingly acquitted the appellant under Section 376 (1) of IPC. It is also clear from the statement of the prosecutrix that she went with the accused on her own will and stayed with the appellant for 8 months and during this period she did not object or raised any alarm that she was abducted by the accused and even at the time when she was taken by the accused she did not raise any alarm, as such no offence under Sections 363 & 366 IPC is made out against the appellant. Thus, the finding recorded by the learned Trial Court is not sustainable. 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 7 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. 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