1 2025:CGHC:5279 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 6 of 2022 Bhagwani Saitode S/o Amardas Saitode, Aged About 19 Years R/o Village Parsadakhurd, P.S. Bori, District- Durg (C.G.) ---Appellant versus State of Chhattisgarh, Through- The Station House Officer, P.S. Bori, District- Durg (C.G.) ---Respondent (Cause-title taken from Case Information System) _____________________________________________________________ For Appellant : Mr. Kishore Narayan, Advocate. For Respondent/State : Ms. Nandkumari Kashyap, Panel Lawyer _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey Judgment on Board 29.01.2025 1. This criminal appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 which has arisen out of the judgment of conviction and order of sentenced dated 09.11.2021 passed by learned Additional Sessions Judge, Second (FTSC) Special Court (under POCSO Act), District- Durg (C.G.) in Special Sessions Case No. 137/2019, whereby the appellant has been convicted for offences under Sections 363 & 366-A of Indian Penal 2 Code and sentenced in the following manner with a direction to run both sentences concurrently:- Conviction Sentence Under Section 363 of the IPC R.I. for 02 years and fine of Rs. 10,000/-, in default of payment of fine additional R.I. for 03 months Under Section 366-A of IPC R.I. for 03 years with fine amount of Rs. 15,000/-, in default of payment of fine, additional R.I. for 06 months. Prosecution Story:- 2. Brief facts of the case are that the mother (PW-5) of the prosecutrix had lodged a written report to the Police Station -Bori, District- Durg (C.G.) with the allegation that on the date of incident i.e. 29.06.2019, her minor daughter aged about 16 years 11 months, was sleeping with her son and the prosecutrix after having the dinner and her husband went to Hathkhoj for work. When she woke up at about 9:30 pm, her daughter was missing from her room, then she saw outside the house, the appellant by alluring took her on his motorcycle and when the complainant shouted to stop, he did not stop. When her husband returned home, she informed him about the incident at about 5:00 am, and then the prosecutrix’s father went to the appellant’s house to inquire about the appellant and asked his mother. On being asked, his mother stated that she talked with the appellant on the mobile phone and stated that the appellant kept the prosecutrix with him. Based on the written report i.e. Ex. P/1, the FIR vide Ex. P/16 was registered by the Police for the offence under Section 363 of IPC and started the investigation. During the investigation, on 29.08.2019, the prosecutrix (PW-4) was recovered from the 3 possession of the appellant near Harsh Developers, Street No. 2 Shiv Chaitanya Colony Jhevalvadi, Pune, Recovery Panchnama was prepared vide Ex. P/7. The prosecutrix was sent for her medical examination to Government Hospital, Durg. With respect to the age of the prosecutrix, the Police had seized School documents i.e., Dakhil Kharij Register (Ex. P/15C), original Mark-Sheet of Class-Vth (Ex. A/2) and Birth Certificate (Ex. A/1). Underwears of the appellant and the prosecutrix were seized. Two slides of vaginal swab was prepared, the appellant was arrested as per Ex. P/18. The statements of the witnesses have been recorded. Statement under Section 164 of Cr.P.C. of the prosecutrix (PW-4) has also been recorded and after completion of due and necessary investigation, a charge-sheet was led before the learned Trial Court for the offences under Sections 363, 366 & 376 of IPC and Sections 4 and 6 of POCSO Act. 3. Learned Trial Court has framed charges against the appellant for the offences punishable under Sections 366, 366A & 376 of IPC and Sections 4 & 6 of the POCSO Act. 4. In order to establish the charges against the appellant, the prosecution has examined as many as 11 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has also been recorded in which he denied the circumstances appears against him, pleaded innocence and has submitted that he has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned Trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence, this appeal. 4 Submissions of the parties:- 6. Learned counsel for the appellant would submit that the judgment of conviction and order of sentence passed by learned Trial Court is bad-in-law as well as facts available on record and most of the witnesses have turned hostile. The father (PW-01) of the prosecutrix has clearly stated that the appellant has not kidnapped the prosecutrix, mother (PW-5) of the prosecutrix and uncle of the prosecutrix have not supported the prosecution case and also the independent witness namely Narad Patel (PW-3) has not supported the prosecution case. Learned counsel for the appellant further submits that the prosecutrix (PW-4) has turned hostile and clearly stated that she had left her house due to dispute with her family and not due to being allured by the appellant, therefore, there is lacuna in the case of prosecution, yet the learned Trial Court has convicted the appellant and therefore appellant is entitled for acquittal. In support of his contention, he placed reliance upon the decisions of Hon’ble Apex Court in the matters of S. Varadarajan vs. State of Madras, reported in (1965) 1 S.C.R. & P. Yuvaprakash vs. State rep. By Inspector of Police, reported in, 2023 LiveLaw (SC)538. 7. Ex adverso, learned counsel for the State opposes the submissions of learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt and the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant for the alleged offences and the impugned judgment of conviction and order of sentence needs no interference. 8. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. 5 Discussion and Analysis:- 9. It is clear from record of learned Trial Court that it framed charges against the appellant for offence under Sections 363, 366 & 376 of IPC and Sections 4 & 6 of POCSO Act and it is also clear that the prosecution has examined as many as 11 witnesses to prove its case against the accused person/appellant. Learned Trial Court after minutely appreciating the oral and documentary evidence acquitted the appellant of the offence under Section 376 of IPC and Sections 4 & 6 of POCSO Act and thereby convicted the appellant for offence punishable under Sections 363 & 366/A of IPC. Learned Trial Court found that on the date of incident, the prosecutrix did not attain her majority and thereby convicted the appellant under Sections 363 & 366/A of IPC. 10. For the sake of convenience, Sections 363 & 366/A of IPC for ready reference are quoted hereinbelow: 363. Punishment for kidnapping.— Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366A IPC - Indian Penal Code - Procuration of minor girl.- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. 6 11. The prosecutrix (PW-04) has stated in her examination-in-chief that she used to meet the accused while going to school and coming from school. She started talking to the appellant on the mobile phone, and one day her mother saw her, while she was talking to the appellant, her mother got angry and scolded her. She apologized to her mother, on that matter, she was enraged and went to Pune with the appellant. In her cross-examination, she admitted this fact that if her mother had not beaten her that night, she would never have left the house with the appellant. 12. PW-05, the mother of the prosecutrix, has stated in her examination-in- chief that on the date of incident, her daughter/prosecutrix was minor and when she was asleep in her house, at that time appellant came and tried to take her daughter with him, on hearing the noise, PW-05 and her son woke up, then the appellant fled from the spot. Thereafter, she went to the Police station, and at that time, the prosecutrix was at home. When she returned her home from the Police Station, the appellant took her daughter/prosecutrix with him. On the same date, the prosecutrix was searched whole night, but she was not found. Therefore, on the next day, she, uncle of the prosecutrix and neigbhour went to Police Station to lodge report as per written report Ex. P/1., she admitted her signature on C to C part. 13. PW-01, father of the prosecutrix, has also stated in his examination-in- chief that her wife stated that the appellant came inside the house and then she went to the police station and in the meantime, the appellant and her daughter/prosecutrix left his house. 14. Learned Trial Court has also found that prosecution has failed to prove its case under Section 376 of IPC and Sections 4 & 6 of POCSO Act, but 7 learned Trial Court found that accused is guilty for offence under Sections 363 & 366/A of IPC, but the Trial Court committed grave error as there was discrepancy in the age of the prosecutrix (PW-4). 15. Madan Satkar (PW-8), who is the Principal of Government Middle High School, Parsada Khurd, Durg has stated that with respect to the age of the prosecutrix, police had seized Admission Register/Dakhil Kharij Register of the prosecutrix before the witnesses as per Seizure Memo Ex. P/14, in which he admitted his signature on A to A part. He also produced school admission register before the police as Ex. P/15 and as per register, date of birth of the prosecutrix is 31.07.2002 and she was admitted in class-VIth on 18.06.2013. In his cross-examination, he admitted this fact that this entry was not made by him and it is not his handwriting and this entry was made on the basis of mark-sheet of Class-Vth and transfer certificate of the prosecutrix. He also admitted this fact that, he has no knowledge of the fact that on what basis date of birth of the prosecutrix (PW-4) was registered in school. 16. Prosecution has also filed birth certificate of the prosecutrix i.e. Ex. A/1, but it is clear from this certificate that this certificate was issued on 16.01.2017 and as per F.I.R. (Ex. P/16) date of incident is 29.06.2019. 17. It is pertinent to mention here of the Registration of Births and Deaths Act, 1969 in Chapter- III Section 13 for ready reference 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 therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed.” (2) Any birth or death of which delayed information is given to the Registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government. 8 (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 varifying the correctness of the birth or death and on payment of the prescribed fee. (4) The provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action.” 18. It is clear from birth certificate of the prosecutrix (PW-4) i.e., Ex. A/1 that there was delay of 15 long years in issuing her birth certificate by the competent officer and regarding this delay there was no supporting documents filed by the prosecution. 19. 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 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, 9 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.” 20. In the light of above judgment and In the present case also, it is clear that Madan Satkar (PW-8) admitted this fact that entry was not made by him in the Dakhil Kharij Register/Admission Register and it is also clear that birth certificate (Ex. A/1) was prepared on 16.01.2017 and not at the time of birth of the prosecutrix (PW-4) i.e., in the year 2002. So, prosecution has failed to prove the age of the prosecutrix beyond reasonable doubt, but the learned Trial Court relied upon the admission register i.e. Dakhil Kharij Register (Ex. P/15) and Birth Certificate (Ex. A/1) of the prosecutrix and thereby convicted the appellant. Thus, findings recorded by learned Trial Court are not sustainable in the eyes of law. 10 21. In the result, the appeal is allowed, the impugned judgment of conviction and sentence is set aside. The appellant is acquitted of all the charges levelled against him. The appellant is in jail since 01.09.2019. He be released forthwith, if not required in any other case. 22. Keeping in view the provision of Section 481 of BNSS, 2023., the appellant is directed to furnish the personal bond a sum of Rs. 25,000/- 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 or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 23. 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 AMIT PATEL Digitally signed by AMIT PATEL Date: 2025.02.03 14:19:09 +0530