1 2025:CGHC:54879 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 506 of 2008 1. Nasiruddin Qureshi, S/o Shri Kamruddin Qureshi, aged about 21 Years resident of Village Pahanda, P.S. Magarlod, District Dhamtari Chhattisgarh. 2. Kamruddin Qureshi, S/o Shri Alfauddin Qureshi, aged about 51 years, resident of Village Pahanda, P.S. Magarlod, District Dhamtari Chhattisgarh. 3. Sugra Bee, aged about 48 years, W/o Shri Kamruddin Qureshi, resident of Village Pahanda, P.S. Magarlod, District Dhamtari Chhattisgarh. (As per Hon’ble Court order dated 16.06.2022, the appeal stands abated in respect of appellant Nos. 2 & 3.) ... Appellants versus • State of Chhattisgarh, through the S.H.O., Police Station- Magarlod, District- Dhamtari, Chhattisgarh. ... Respondent/State _____________________________________________________________ For Appellants : Ms. Pooja Loniya, Advocate on behalf of Mr.Vivek Rathore, Advocate. For State : Ms. Nandkumari Kashyap, PL ____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey Judgment on Board 11.11.2025 1. As per order dated 16.06.2022 of this Court, appellant Nos. 2 and 3 died on 27.04.2016 & 06.07.2018 respectively, hence the appeal stands abated in respect of appellant Nos. 2 & 3. Digitally signed by AMIT PATEL 2 2. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 15.05.2008 passed by learned Additional Sessions Judge, Dhamtari (C.G.) in Sessions Trial No. 56/2006, wherein the said Court convicted the appellants and sentenced them as under :- For Appellant No. 1 Conviction Sentence Under Section 363 of IPC R.I. for 01 year with fine amount of Rs. 500/-, in default of payment of fine to undergo additional R.I. for 06 months. Under Section 366 of IPC R.I. for 03 years with fine amount of Rs. 1000/- in default of payment of fine to undergo additional R.I. for 06 months. Under Section 368 of IPC R.I. for 01 year with fine amount of Rs. 500/- in default of payment of fine to undergo additional R.I. for 06 months. (All the sentences are directed to run concurrently) For Appellant No. 2 and 3. Conviction Sentence Under Section 368/34 of IPC R.I. for 06 months each with fine amount of Rs. 500/- each in default of payment of fine to undergo additional R.I. for 02 months. 3. The case of the prosecution, as unfolded from the impugned judgment and the records of the case is that the prosecutrix (PW-1) was in love affair with her neighbor/accused- Nasiruddin since 04 years. The accused- Nassiruddin had previously committed sexual intercourse with 3 her at her home on the pretext of marriage with her consent. On 29.03.2005, at around 9:30 p.m., he lured her and took her on foot to Chhati village, from where he took her by bus to Raipur, from there to Basna, and then to Dhuliya Chowk of Odisha, where he rented a house for a few days at Nazir's house. The accused/Nasiruddin then brought the prosecutrix to his brother's house in Raipur. Furthermore, on 30.03.2005, upon information from the father of the prosecutrix (PW-2), a case was registered at police station- Magarlod. At a village meeting, Nasiruddin's father, accused/Kamruddin, gave assurance to villagers that he will trace them out and produce them. Then, on the basis of written complaint (Ex.P/2) of father of the prosecutrix (PW-2), Crime No. 59/05 was registered at Police Station- Magarlod on 08.04.2005 vide Ex.P/3 and spot map was prepared vide Ex.P/9. The prosecutrix (PW- 1) became pregnant due to sexual intercourse by accused Nasiruddin. Co-accused persons Kamruddin and Sugara Bee came to Raipur and informed to the accused- Nasiruddin that prosecutrix’s parents had knowledge of their stay in Raipur. Then, they rented a house from Fafadeep in Zahida Begum's house at Ayodhya Nagar, Raipur and the prosecutrix (PW-1) delivered a child boy at a private hospital in Bairang Bazar, Raipur, whose six days’ birthday (Chhathi) was celebrated at Zahida Begum's house. On 06.04.2006, the co-accused persons arrived at Ayodhya Nagar, Raipur, and informed again to the accused- Nasiruddin that prosecutrix's parents had knowledge of their stay. Then, again the prosecutrix was kept hidden in the rented Qtr. No.8 of Asgar at Rotary Nagar Colony, Raipur. From there, on 27.04.2006, the police recovered the prosecutrix and her 3 month’s old son and Ex.P/1 was prepared. They were brought to the Police Station- Magarlod. With the permission of the Sub-Divisional Magistrate vide Ex.P/16 and the consent (Ex.P/4) of father of the prosecutrix (PW-2) the medical 4 examination of the prosecutrix was conducted, the report of which was received vide Ex.P/17A and she was handed over to her father (PW-2) under Ex.P/5. After medical examination, the doctor sealed prosecutrix's undergarments, petticoat and slides and handed them over to the constable for chemical examination, seizure of which was prepared vide Ex.P/15, and sent to FSL. Medical examination of the accused person/Nasiruddhin was also conducted, statements of the witnesses as well as prosecutrix statement’s were recorded and the accused persons were arrested. With regard to ascertain the age of the prosecutrix Dakhil Kharij Register was seized vide Ex. P/10 and spot map was prepared by Patwari. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellants for alleged commission of offence under Sections 363, 366, 376 (1) and 368 of IPC. The appellants/accused having abjured guilt were subjected to trial. 4. In order to bring home the guilt, the prosecution has examined as many as 27 witnesses to prove its case against the appellants. Statement of the accused/appellants were also recorded under Section 313 of Cr.P.C., in which they denied all the incriminating circumstances appearing against them in the prosecution case and pleaded their innocence and false implication in this case. However, no witnesses examined by them in his defence. 5. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record thereby convicted and sentenced the accused/appellants as mentioned in 5 inaugural para of this judgment. Hence, this present appeal. 6. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case, learned trial Court has failed to appreciate that the prosecution has failed to establish the age of prosecutrix below 18 years of age, the prosecutrix was a consenting party to the act of the appellant and therefore, the learned trial Court acquitted the appellant of offence under Section 376 (1) of IPC. Toran Singh Sahu PW-25 (Assistant Teacher) has admitted in cross-examination that the date of birth in school register is recorded on the basis of school transfer certificate and no admission register of primary school was produced by the prosecution or any birth certificate produced by the prosecution, so prosecution has utterly failed to prove the date of birth of the prosecutrix, but the learned trial Court has not considered all these facts and convicted the present appellant on this ground that prosecutrix was below 18 years of age, therefore, findings recorded by learned trial court are highly perverse. So, the impugned judgment is liable to be set aside. 7. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the present appellant for the aforesaid offences. So, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed. 8. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 9. It is evident from record of learned learned trial Court that it framed 6 charges for offence punishable under Sections 363, 366, 376 (1) and 368 of IPC against the present appellant- Nasiruddin and offence punishable under Sections 368/34 of IPC against the co-accused persons/appellant Nos. 2 and 3 namely Kamruddin and Sugara Bee and after appreciation of oral and documentary evidence, learned trial Court acquitted the present appellant of offence under Section 376 (1) of IPC and thereby convicted for rest of the offences and convicted other co-accused persons/appellant Nos. 2 and 3 for offence punishable under Section 368/34 of IPC. 10. Learned trial Court finds in para 25 that date of birth of prosecutrix is 02.07.1988 and on the date of incident she was aged between 16-18 years and learned trial Court has acquitted the appellant- Nasiruddin of offence under Section 376 (1) of IPC. 11. Toran Singh Sahu (PW-25), who is the Assistant Teacher of Middle School, Pahanda has stated in his deposition that police had seized Admission/Dakhil Kharij Register of School which is Ex. P/26 and as per Dakhil Kharij Register (Ex. P/26) of prosecutrix (PW-01) date of birth was written as 02.07.1988 at Serial No. 33. In his cross- examination, he admitted this fact that the prosecutrix was admitted in Class- VIth and date of birth of prosecutrix was registered on the basis of certificate of Class-Vth and transfer certificate of Class- Vth in Dakhil Kharij Register (Ex. P/26) which were produced before him at the time of admission of the prosecutrix (PW-01). 12. The prosecution has not filed register of Primary School and not examined any Teacher or Principal of Primary School where the prosecutrix (PW-1) was admitted in Class-I. 13. The Hon’ble Apex Court in the matter of Alamelu and another Vs. 7 State, represented by Inspector of Police,1 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, namely, for obtaining admission; for 1. (2011) 2 SCC 385 8 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.” 14. In the light of the aforesaid judgment of Hon’ble Apex Court, this Court finds 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 (PW-1) was below 18 years of age, but the learned trial Court only on the basis of deposition of PW-25 (Assistant 9 Teacher) finds that the prosecutrix was below 18 years of age on the date of incident. As such, findings recorded by the learned Trial Court are not sustainable. 15. In the result, the appeal is allowed. The impugned judgment of conviction and sentence dated 15.05.2008 is set aside. The appellant is acquitted of all the charges leveled against him. 16. The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a 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 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 thereon shall appear before the Hon'ble Supreme Court. 17. 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