1 2025:CGHC:27804 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 46 of 2014  Manohar Lal, S/o Late Dayaram Chauhan, Aged About 50 Years, R/o Kotmi, PS Dabhara, Distt. Janjgir-Champa, At Present R/o Jhopad Patti, Near Irrigation Colony Korba, Chhattisgarh --- Appellant versus  State of Chhattisgarh Through The PS (Out Post) C.S.E.B, PS Kotwali, Korba, C.G. --- Respondent And CRA No. 47 of 2014  Kamal Kumar, S/o Manohar Lal Chauhan, Aged About 23 Years, R/o Kotmi, PS Dabhara, Distt. Janjgir-Champa C.G. At Present R/o At Budhawari, Out Post Rampur, Korba, Distt. Korba, C.G. ---Appellant Versus  State of Chhattisgarh Through The P.s. (Out Post) C.S.E.B. P.S. Kotwali, Korba, C.G. --- Respondent 2 For Appellants : Mr. Abhijit Sarkar, Advocate For Respondent : Mr. Ajay Pandey, Govt. Advocate Hon'ble Smt. Justice Rajani Dubey Judgment On Board 25/06/2025 1. Since the aforesaid appeals arise out of the same judgment of conviction and order of sentence, they are being heard together and disposed by this common judgment. 2. The aforesaid appeals arise out of the impugned judgment of conviction and order of sentence dated 10.12.2013 passed by Additional Sessions Judge (F.T.C.), Korba, District Korba (C.G.), in S.T. No.15/2009 [State of C.G. Vs. Manohar Lal and Anr.] and S.T. No. 69/2011 [State of C.G. Vs. Kamal Kumar], whereby and whereunder accused/appellant Manohar Lal in CRA No. 46/2014 has been convicted under Sections 363, 366(A) & 109 IPC, and accused/appellant Kamal Kumar in CRA No. 47/2014 under Sections 363 and 366(A) of IPC and sentenced appellant Manohar Lal to undergo R.I. for 03 years with fine of Rs.2,000/-, R.I. for five years with fine of Rs.3,000/-, R.I. for 03 years with fine of Rs.2,000/-, and appellant Kamal Kumarto undergo R.I. for 03 years with fine of Rs.2,000/- & 3 R.I. for 05 years with fine of Rs.3,000/- respectively, with default stipulation. 3. In the present case, two other accused persons whose age was less than 18 years, have been charge sheeted and tried before the Juvenile Court and due to death of accused Sitaram, S/o Santu Ram Chauhan on 17.07.2012 during trial, the case in respect of the said accused was abated. In the case, another accused Kamal Kumar (appellant in CRA No.47/2014) being absconded, a supplementary charge sheet was filed after two years on 19.08.2011 after his arrest on 05.08.2011, which was registered as Sessions Trial No.69/2011. In the said case, statements of 12 witnesses had been recorded, whereas in Sessions Trial No.15/09, statements of only 8 witnesses had been recorded. The trial Court received the case on transfer after it was notified as FTC. In the supplementary challan whose Session Trial No. is 69/2011, statements of 4 additional witnesses have been recorded. The statement of only one witness I.e PW-12 and one defence witness were recorded, and before passing the impugned judgment, the aforesaid sessions trial were clubbed together and accused/appellant Manohar in CRA No.46/2014 was afforded an opportunity to cross-examine four witnesses. 4 4. The prosecution story, in brief, is that on 27.08.2008 at 5:15 PM, Ku. Lachhan came to the house of complainant Suresh Kumar and after luring his 16 years old minor daughter/ victim, took her to other accused persons. Thereafter, all four of the accused persons luring the victim from the guardianship of complainant Suresh Kumar without his consent took her to accused/appellant Kamal Chauhan's house in Irrigation Colony, Rampur, where accused/appellant Kamal's father Manohar Chauhan after luring the victim that he would perform her marriage took her to ITI Chowk and went to the station by auto. Ku. Lachhan returned to her house. When she was enquired, it came to know that the victim was taken to Raigarh. Next day, the complainant went to Raigarh and searched for her daughter. When she was not found, a complaint was made by the complainant against the accused persons, based on the said complaint, zero numbered FIR under Ex.P-10 was registered against the accused persons and the present accused/appellants followed by numbered FIR being Crime No.898/2008 under Ex.P-14. During investigation, the accused persons were caught and brought to the police station, the accused persons were questioned in front of witnesses and their memorandum statements were taken 5 and offence under Sections 363, 366 (a) and 109 of the Indian Penal Code were registered against the accused persons and the present accused/appellants. 5. After completing the usual investigation, charge sheet for the offence under Sections 363, 366(a), 109, 34 of IPC was filed against the accused/appellant Manohar in CRA No.46/2014. Since the accused/appellant Kamal Kumar in CRA No. 47/2014 was absconded, supplementary charge sheet for the offence under Sections 363, 366(a), 363 and 109, 34 of IPC was filed against him after two years on 19.08.2011 after his arrest on 05.08.2011. The details of which has already been mentioned in para 3 of the judgment. 6. After filing of the charge sheet, the trial Court framed charges under Sections 363, 366(a) and 109 of IPC against appellant Manohar Lal in CRA No. 46/2014 and under Sections 363, 366, 376(1) of IPC against appellant Kamal Kumar in CRA No.47/2014. 7. So as to hold the accused/appellants guilty, the prosecution examined as many as 08 witnesses in S.T. No.15/2009 in respect of appellant Manohar in CRA No.46/2014 and 12 witnesses in S.T. No.69/2011 in respect of appellant Kamal Kumar in CRA No.47/2014. Statements of the 6 accused/appellants were also recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. That apart, one defence witness namely Shivraj Sharma (DW-1) was also examined in S.T. No.69/2011 in respect of appellant Kamal Kumar in CRA No.47/2014 to substantiate his case. 8. The learned trial Court after hearing counsel for the respective parties and considering the material available on record, while acquitting appellant Kamal Kumar in CRA No.47/2014 of the offence under Section 376 IPC, convicted and sentenced the accused/appellants as mentioned in para-1 of this judgment. Hence, the aforesaid appeals. 9. Learned counsel for the appellant – Manohar Lal in CRA No.46/2014 submits that the judgment passed by the learned trial Curt is contrary to the facts and evidence available on record hence liable to be set aside. The learned trial Court did not appreciate the fact and law involved in the present case while convicting the appellant in connection with the crime in question, therefore, the impugned judgment passed by the learned trial Court is liable to set aside. Learned counsel further submits that the learned trial Court failed to appreciate that Prosecutrix married with co- 7 accused Kamal Kumar and came back with a baby. The police tried to hand over the prosecutrix to her parents but she denied to go with her parents and went with co-accused Kamal Kumar to enjoy her matrimonial life. The learned trial Court after taking the evidence found that co-accused Kamal Kumar induced the Prosecutrix who was at the time of incident below 18 years and compelled her to marry with him, and the said fact was well within the knowledge of appellant but he did not co-operate with the police, thus convicted him for the offence under Section 363, 366(a) and 109 of IPC, which is not sustainable in the eye of law and the said finding deserves to be set aside. 10. Learned counsel for the appellant – Kamal Kumar in CRA No.47/2014 submits that the Prosecutrix was in love with appellant and she accompanied the appellant of her own without resisting any protest there against, and the learned trial Court also recorded its finding that the Prosecutrix was a consenting party to the act of the appellant and acquitted him from the offence under Section 376 IPC, but on this ground that the Prosecutrix was below 18 years of age, convicted him under Section 363 and 366(a) of IPC, which is bad in law. The prosecution has utterly failed to prove the age of the prosecutrix below 18 years of age. As such, the 8 impugned judgment of conviction and order of sentence are liable to be set aside. 11. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellants is strictly in accordance with law and there is no infirmity in the same. So both the appeal being without any merit are liable to be dismissed. 12. I have heard learned counsel for the parties and perused the material available on record. 13. It is clear from the records of the learned trial Court that the learned trial Court framed charges against appellant Manohar in CRA No.46/2014 under Sections 363, 366(a) & 109 of IPC and against appellant Kamal Kumar in CRA No.47/2014 under Sections 363, 366(a) and 376 (1) of IPC & after appreciating oral and documentary evidence on record, while acquitting appellant Kamal Kumar in CRA No.47/2014 from the offence under Section 376 (1) IPC, convicted and sentenced both the appellants as described in para 2 of this judgment. 14. As per the prosecution, the date of birth of the Prosecutrix is 01.03.1992 and the father of Prosecutrix filed copy of birth certificate (Article ‘A’). Perusal of the birth certificate (Article ‘A-1’) goes to show that the date of birth of the prosecutrix is 9 01.03.1992 but the registration date of this document is 22.10.1996, i.e. after four years of the birth of the prosecutrix. Learned counsel for the appellant raised question regarding admissibility of such document in view of Registration of Births and Deaths Act, 1969. 15. The question which arises before this Court whether the birth certificate issued with delay can be taken into consideration for determination of age of victim in criminal cases. 16. Undoubtedly, the birth certificate is a strong proof for determination of the age of a person and credibility of this document cannot be doubted but for regulating the registration of births and deaths and matters connected therewith, the Parliament has enacted the Registration of Births and Deaths Act, 1969. Different procedure were prescribed under Chapter-III- Registration of Births and Deaths and Section 13 deals with Delayed Registration of Births and Deaths. For ready reference, Section 13 (3) is reproduced herein as under :- “13. Delayed registration of births and deaths. - (1) Any birth or death of which information is given to the Registrar after the expiry of the period specified thereof, but within thirty days of its occurrence, 10 shall be registered on payment of such late fee as may be prescribed. (2) xxxx (3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.” 17. In the instant case, it is apparent from the statement of father of prosecutrix (PW-1) (in S.T.No.69/2011) that the police had seized photocopy of birth certificate (Article ‘A-1’) and original certificate was not with him. 18. Investigating Officer Ashok Singh (PW-4) (in S.T.No.15/2009) has stated that the birth certificate of the prosecutrix was attested by him which is ‘Article A-1’. It is clear from the statement of both the witnesses that the original birth certificate of the prosecutrix was not produced before the learned trial Court and only attested copy of birth certificate ‘Article A-1’ was seized by the Investigating Officer, which was exhibited by the learned trial Court without filing original birth certificate of the prosecutrix, as such, it is not admissible in evidence and not sufficient to prove the age of the prosecutrix. Except this, no other 11 document was produced by the prosecution regarding the age of the prosecutrix. 19. The registration of the date of birth of the prosecutrix has been made after delay of about 04 years as is evident from the birth certificate (Article ‘A-1’) and the prosecution did not file any document qua the order of Magistrate as contemplated under Section 13 (3) of the Registration of Deaths and Births Act, 1969, regarding delay in registration of date of birth and on what basis, it has issued the birth certificate of the prosecutrix. Thus, the credibility of birth certificate is under suspicion, and therefore, it would be difficult for this Court to arrive at definite conclusion that the Prosecutrix, at the time of incident, was minor. The prosecution has to prove this fact beyond reasonable doubt that the Prosecutrix at the time of incident was minor but it has failed to prove the same. 20. The birth certificate being a strong proof of age must be taken in to consideration but if there is delay of more than one year in issuing the birth certificate, the same shall be taken into consideration only after complying the provision of Sub section 3 of Section 13 of Chapter III of the Registration of Births and Deaths Act, 1969, which provides for order of Magistrate of First Class or a Presidency 12 Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee. After considering the facts and circumstance of the case and the evidence with regard to the age of the victim, the finding of the learned trial Court to the effect that the Prosecutrix on the date of incident was minor, is set aside. 21. The next question which arises for consideration before this Court whether the appellants abducted the prosecutrix from lawful guardianship to compel to marry against her Will and forced to illicit relation ? 22. Prosecutrix (PW-1) (in S.T.No.69/2011) categorically stated in her statement that she was in love with accused/appellant Kamal Kisore and he did not abduct her forcefully and she herself went with the appellant Kamal Kishore. Prosecutrix, in para 10 of her cross-examination, has stated that appellant Kamal Kishore did not establish physical relation with her forcefully. She has also stated that when she went with appellant Kamal Kishore, she was above 18 years of age. She has also stated that at present she is residing with appellant Kamal Kishore in Korba of her own Will. 23. The aforesaid testimony of prosecutrix in not resisting the act of appellant Kamal Kumar and submitting herself to his disposal speaks in volumes regarding her clear cut consent 13 and she accompanied with him of her own, but the learned trial Court did not appreciate this fact and recorded perverse finding. 24. Thus, from the aforesaid discussion and the evidence on record, this Court is of the opinion that the findings recorded by the Court below appear to be beyond proper appreciation of the evidence adduced by the prosecution which cannot have affirmation from this Court. Since, the prosecution has failed on all fronts to prove its case beyond the shadow of reasonable doubt, the benefit, of course, has to go to the accused/appellants. The appeals are thus allowed, judgment impugned is hereby set aside and the accused/appellants stand acquitted of the charges levelled against them. 25. The appellants are already on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (new section 481 of the B.N.S.S.), the appellants are 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/- each with one surety in the like amount before the Court concerned which 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 for grant of leave, the 14 aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 26. The trial Court record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. 21. Appeals are thus allowed. Sd/- (Rajani Dubey) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE