1 2025:CGHC:20006 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 191 of 2016 1 - Rupesh Dhruw S/o Ramgarib Dhruw Aged About 23 Years R/o Shankarnagar, Below Railway Line, Mahasamund, District Mahasamund, Chhattisgarh., Chhattisgarh --- Appellant(s) versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Mahasamund, District Mahasamund, Chhattisgarh., Chhattisgarh --- Respondent(s) For Appellant(s) : Mrs. Anjali Pradhan, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 01/05/2025 1. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence 2 dated 15.01.2016 passed in Special Criminal Case H-33/2015 by the Additional Sessions Judge, FAST TRACK Court/ Special Court (POCSO Act), Mahasamund (C.G.) and has convicted and sentenced the appellant as under :- Conviction Sentence U/s 363 of IPC R.I. for 4 years and fine of Rs. 500/-, in default of fine, additional R.I. for 1 month. U/s 366-A of IPC R.I. for 4 years and fine of Rs. 500/-, in default of fine, additional R.I. for 1 month. U/s 6 of POCSO Act R.I. for 10 years and fine of Rs. 1000/-, in default of fine, additional R.I. for 2 months. 2. Case of the prosecution in brief is that on 07.03.2015, the complainant lodged a report at Police Station Mahasamund, alleging that his daughter (prosecutrix) has been abducted by unknown person on the basis of assurances on 07.03.2015 at about 3:30 pm from his house. On the basis of the above report, the offence under Section 363 of IPC was registered against unknown person and during course of investigation, the prosecutrix was recovered from the custody of appellant on 27.03.2015 and after recovery of prosecutrix, her statement was recorded, in which, she stated that on the pretext of marriage, the appellant took her and committed sexual intercourse with her. 3. After hearing learned counsel for the parties and appreciating 3 evidence available on record, the trial Court vide judgment dated 15.01.2016 convicted and sentenced the appellant/accused for the offence punishable under Sections 363, 366-A of IPC and Section 6 of POCSO Act in the manner as described above of this judgment. Hence, this appeal. 4. In order to prove the charges against the appellant, prosecution examined as many as 14 witnesses. Statement of appellant was also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. 5. Learned counsel appearing for the appellant submits that the prosecutrix has categorically deposed that she is having love affair with the appellant since last 1 ½ years and both are ready to live together as spouse. The prosecutrix has not been declared hostile by the prosecution, therefore, the impugned conviction of the appellant, being baseless, perverse and contrary to the evidence available on record, deserves to be quashed by this Hon’ble Court. 6. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submitsthe prosecution has successfully proved the commission of offense by the appellant beyond reasonable doubt and the appellant has been rightly convicted and sentenced by the trial Court, therefore, there is no illegality or infirmity in the finding of learned trial Court 4 and the impugned judgment of the Court below needs no interference. 7. I have heard learned counsel for the respective parties, perused the judgment of the trial Court as well as other material available on record with utmost circumspection. 8. In order to consider the age of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register (Article A-1/C), wherein date of birth of prosecutrix is mentioned as 28.12.1998. Prosecutrix (PW-4) has stated in her examination-in-chief that her date of birth mentioned in certificate is 28.12.1998 which is wrong and her correct date of birth is 11.01.1998. In para 9 of her cross-examination she has admitted that the date of birth which she has stated to be correct, i.e., 11.01.1998 is told by her parents. Whereas, PW-5/ mother of prosecutix has deposed in para 1 of her examination-in-chief that since she is uneducated, therefore, she does not know the date of birth of her daughter/ prosecutrix. Also, PW-6/ father of prosecutrix has deposed in para 1 that he did not remember the date of birth of his daughter. The same witness has given his statement before the police officer (Ex. P/11) wherein he has stated that “his minor daughter whose date of birth is 18.12.1998 aged about 17 years has been kidnapped by an unknown person.” Again, in para 7 of his cross-examination he 5 admitted that he has studied till class 4th and he did not remember the date of birth of his daughter/ prosecutrix. In para 8, he admitted that he has not entered the date of birth of his daughter in Municipality or any other institution. 9. PW-1/Headmaster of school has admitted in para 3 of his cross- examination that he has made an entry in the Dakhil-Kharij Register (Article A-1) at S. No. 84. He then himself stated that the entry at S. No. 84 in Dakhil- Kharij Register has not been made by him instead it has been made by prior headmaster. He further admitted that since he has not made the entry in the register, therefore, he could not tell on what basis the date of birth of prosecutrix has been entered in Dakhil-Kharij Register. 10. There is no any documentary evidence available on record that on what basis date of birth of prosecutrix is mentioned as 28.12.1998 and also no birth certificate issued by the Corporation or Panchayat has been produced regarding date of birth of prosecutrix. Even the ossification test of the prosecutrix has not been conducted. There is no legally admissible evidence with regard to age of prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. In their cross-examination, mother and father of 6 the prosecutrix have stated that they are not aware about the date of birth of the prosecutrix. Mr. Sanat Kumar Gupta (PW-1)/ Headmaster of School, has also stated in his cross-examination (Para-3) that he is not aware that on what basis the date of birth of victim was entered in Dakhil-Kharij Register as he has not made the entry in the said register. 11. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age.— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall 7 undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 12. 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: 8 “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 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 9 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." 13. From perusal of statements of prosecutrix (PW-4), her mother (PW-5) and her father (PW-6) as well as other prosecution witnesses, it appears that there is no any cogent and clinching evidence led by the prosecution to hold that on the date of incident, the prosecutrix was minor and below 18 years of age. 14. Now, reverting to the facts of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix/victim was minor and less than 18 years of age on the 10 date of incident, despite the fact that the trial Court in the impugned judgment has held the prosecutrix minor. Accordingly, I set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. 15. Now, the question arises for consideration is whether the accused commits rape upon the prosecutrix? 16. In this regard, PW-4/prosecutrix has deposed in her examination- in-chief that the incident took place at around 5 months ago. She went along with the accused on her own free will to Sirpur. After 1 week they returned to Mahasamund and after 2 days they went to Nivari. She further deposed that accused established physical relation with her by her consent without any force. In para 7 she deposed that she and the accused wanted to marry each other but their family members were not agree for this, therefore, she went along with the accused. When she was living with the accused at that time, they were living as husband and wife and established physical relation as a married couple. In para 8 of her cross-examination she again admitted that she knew the accused from about 1 ½ years ago and she loved him. Her mother knew this but her father did not. 17. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix was a consenting party. Nowhere she disclosed that at any point of time that the 11 appellant was taking her by forcefully and appellant has committed sexual intercourse with her against her will. Dr. (PW-14) who medically examined the prosecutrix gave her report (Ex. P/25) wherein she stated that prosecutrix is physically and mentally well. Secondary sexual character developed, regular menstrual cycle. On internal examination- her hymen ruptured, healed old scar, vagina admits 2 finger. In her opinion, signs of sexual intercourse may be repeated in short duration. 18. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, I am of the opinion that the age of the prosecutrix is not verified and she was a consenting party. Therefore, in the above facts and circumstances of the case, offence under Section 363, 366-A of IPC and Section 6 of POCSO Act would not be made out against the appellant. 19. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 15.01.2016 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. 20. It is reported that the appellant is on bail. His bail bond are not discharged at this stage and the same shall remain operative for a further period of 6 months in light of Section 437-A of Cr.P.C. 21. The trial Court record (TCR) along with a copy of this 12 judgment be sent back immediately to the trial Court concerned for compliance and necessary action. SD/- (Arvind Kumar Verma) JUDGE Madhurima