1 2025:CGHC:53500 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1249 of 2022 1 - Kamlesh Banjare S/o Pilen Banjare Aged About 21 Years R/o Village Katai, Navagaon, Police Station And District Bemetara Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Bemetara, District Bemetara Chhattisgarh ... Respondent For appellant/accused : Mr. Yogesh Chandra, Adv. For respondent : Ms. Mukta Tripathi, Panel Lawyer. For victim : Mr. N.K. Chatterjee, Adv. (Hon’ble Shri Justice Naresh Kumar Chandravanshi) JUDGMENT ON BOARD 29-10-2025 1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 27-7-2022 passed by the Upper Sessions Judge (FTC), Districrt Bemetara (CG) in Sessions Trial No. 16/2021, whereby the learned Upper Sessions Judge, after holding the appellant/accused guilty, convicted and sentenced him in the following manner:- Digitally signed by AVANISH KUMAR PATHAK Date: 2025.11.04 11:18:06 +0530 2 Sl. No. Conviction under Section Jail Sentence Fine Sentence Default stipulation 01. 354, IPC RI for 2 years Rs. 500/- RI for 2 months 02. 506-II, IPC RI for 1 year Rs.500/- RI for 2 months 03. 8, POCSO Act RI for 4 years Rs.500/- RI for 2 months All the substantive jail sentences have been directed to run concurrently. 2. The case of the prosecution, in brief, is that, the appellant/accused and the victim are neighbour. On 13-1-2021 at about 8 pm in the night, appellant/accused called the victim saying to come behind her house to meet him, else he will come to her house. Therefore, the victim went behind her house, where the appellant/accused holding her and hugging her from behind, he touched her chest and molested her and said that, if she does not marry him, he will kill her and her family members. Then, the victim's elder sister came to know about it on 14- 1-2021, thereafter, written complaint (Ex. P-10) dated 15-1-2021 was filed in PS Bemetara, based on which, FIR Ex. P-11 was registered against the appellant-accused for the offence under Sections 354, 506 of the IPC and Section 8 of the Protection of Children from Sexual offences Act, 2012 (henceforth referred to as ‘POCSO Act’). 3. Statements of witnesses under Section 161 of the Cr.P.C. were recorded. Spot map was prepared. Dakhil Kharij register pertaining to date of Birth of the victim was seized. The victim was medically 3 examined by the doctor. It was opined by the doctor that, no any internal injury was seen on the persons of victim, however the said medical report has not been exhibited and proved. After completion of investigation, charge sheet under Sections 354, 506 of the IPC and Section 8 of the Protection of Children from Sexual Offences Act was filed. 4. Learned Upper Sessions Judge (Fast Track Court) Special Judge (POCSO Act), Distt. Bemetara (hereinafter referred to as “Fast Track Court’) framed charges under Sections 354, 506-II of the IPC and Section 8 of the POCSO Act against the appellant/accused, who denied the charges. 5. In order to bring home the guilt of the appellant/accused, the prosecution has examined following witnesses and exhibited following documents :- WITNESSES PW 1 Mother of victim PW 5 Elder sister of victim PW 2 Victim PW 6 Neeta Rajput, Sub Inspector PW 3 Neelkhanth Sahu, Investigating Officer PW 7 Amitabh Rawat PW 4 Devki Sahu, Asstt. Teacher EXHIBITS 1. Ex. P-1 Police statement of mother of victim 9. Ex.P-8 Repeat Memo for providing Patwari Naksha 2. Ex. P-2 Police Najri Naksha. 10. Ex. P-9C Copy of relevant page of Dakhil Kharij register 3. Ex. P-3 Seizure memo of Dakhil Kharij register. 11. Ex. P-10 Written complaint of the incident 4 4. Ex. P-4 Supurdnama of Dakhil Kharij register 12. Ex. P-11 FIR 5. Ex. P-5 Arrest memo of accused 13 Ex.P-12 Patwari Najri Naksha 6. Ex. P-6 Information of arrest 14. Ex. P-13 Police statement of sister of victim 7. Ex. P-7 Memo for recording statement u/S. 164 of Cr.P.C. of victim to JMFC, Bemetara 15. Ex. P-14 Police statement of victim 8. Ex. P-8 Memo for providing the Dakhil Kharij register of the victim. 16. Ex. P-15 Memo for medical examination of victim Statement of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he denied all the incriminating circumstances appearing against him, pleaded innocence and false implication. No witness has been examined by the appellant-accused in his defence. The Fast Track Court upon appreciation of oral and documentary evidence available on record, vide its impugned judgment, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused as mentioned in the opening paragraph of this judgment, against which, this appeal has been filed by him. 6. Learned counsel for the appellant/accused would submit that, the alleged incident is said to have occurred in the night at about 8.30 pm behind the house of the victim, which is an open place, where there was no light. The victim herself has admitted in her cross-examination that, he could not have recognized / identified the person who held her 5 from behind, as to whether he was appellant/accused or some one else, though, she has deposed that, when she freed herself and ran away, she saw the appellant/accused. She identified him in the light of mobile of appellant/accused, but no mobile whatsoever has been seized from the appellant. Learned counsel further submits that, the victim is held to be minor by the Fast Track Court on the basis of Dakhil Kharij register, but the mother of victim (P.W. 1) herself has stated that, the maternal grand father of the victim had got admitted her in school and he got recorded the date of birth of the victim on the basis of assumption, therefore, only on the basis of Dakhil Kharij register, it cannot be held proved beyond reasonable doubt that, actual date of birth of the victim is 29-10-2004, as such, the finding recorded by the Fast Track Court that the victim was minor on the date of incident is perverse and illegal. Learned counsel lastly submits that, without any cogent evidence, the appellant has been convicted by learned Fast Track Court, hence he prays that the appeal may be allowed and the appellant may be acquitted of the charges. 7. Learned Panel Lawyer, appearing for the respondent/State supports the impugned judgment. 8. Learned counsel appearing for the victim would submit, that no such incident occurred with the victim. 9. I have heard learned counsel for the parties, considered their rival submissions and also went through the record of the case including the record of the Fast Track Court with utmost circumspection. 10. First of all, the question which arises for consideration is as to whether the victim (PW-2) was minor on the date of the incident ? 6 11. Learned Fast Track Court has held the victim minor on the date of incident only on the basis of Dakhil Kharij Register (Ex. P-9-C), which has been proved by the Devki Sahu (P.W. 4), who is Assistant Teacher of the Government Girl’s Middle School, Bemetara. As per this document (Ex. P-9-C), date of birth of the victim has also been mentioned as ‘29-10-2004’. Though the victim has also deposed in her deposition that her date of birth is ‘29-10-2004’, but it has not been proved by her or her sister or her mother that, on what basis, that date of birth was recorded in the school record, rather the mother (P.W. 1) of the victim has admitted in her cross-examination that, date of birth of the victim was got recorded by maternal grand father of the victim on the basis of assumption. 12. In the matter of Gorkhi Vs. State of UP [(2006) 5 SCC 584], Hon’ble Supreme Court observed at para-26 as under :- “26. In Birad Mal Singhvi v. Anand Purohit {1988 Supp SCC 604} this Court held: (SCC p. 619, para 15) “To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a 7 school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.” (emphasis supplied) 13. Same proposition was reiterated in the matter of Babloo Pasi Vs. State of Jharkhand and another [(2008) 13 SCC 133] wherein the following material observations were made at paras-28 and 29:- “28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See: Birad Mal Singhvi Vs. Anand Purohit). 29. ……………………………...in the absence of evidence to show on what material the entry in the voters' list in the name of the accused was made, a mere production of a copy of the voters' list, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused…………………………...” 14. Further in the matter of Madan Mohan Singh and Others Vs. Rajni Kant and Another [(2010) 9 SCC 209], it was observed that the entries made in the official record by an official or person aurthorised in performance of official duties may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on 8 whose information such entries stood recorded and what was his source of information. The entries in school register/ school leaving certificate required to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 15. In instant case, no birth certificate or certificate of Board of Education of victim or any valid document as has been provided under Section 94 of the Juvenile Justice Act, has been filed and proved by the prosecution. On what basis, said date of birth was recorded in the school record, has not been proved, rather, the mother of victim herself has stated that, her date of birth was got recorded on the basis of assumption by the maternal grand father of the victim, therefore, it cannot be held conclusively only on the basis of Dakhil Kharij register that ‘29-10-2004’ was actual date of birth of the victim. Based on that evidence, the finding recorded by the learned Fast Track Court that, the victim was minor on the date of incident is perverse and illegal. Hence, the same is not sustainable. 16. So far as allegations against the appellant/accused are concerned, P.W. 2 is victim of the incident. She has stated in her deposition that, on being called by the appellant over phone, she went to the plot behind her house. Then the appellant/accused came from behind and held her from back side. He also held her both hands and chest, by saying that he loves her. She has further deposed that, she got feared and getting freed her hands, ran to her house. She has further deposed that, the appellant had threatened her that, if she will not do what he said, then he will kill her father and mother. She further 9 deposed that, on the next day, she disclosed about the incident to her father and mother, thereafter they lodged the report. 17. P.W. 1 is mother of the victim. She has not supported the statement of the victim that, the victim had told her about the incident, rather as per her deposition, her elder daughter had told her (P.W. 1) about the incident. She has also admitted in cross-examination para 6 that, the victim had not told her about the alleged molestation made by the appellant/accused with her. 18. P.W. 5 who is elder sister of the victim, has deposed that the victim had told her about the incident. She has stated that, the victim had not told her about the manner of molestation, rather as per her deposition, the victim had told her that, the appellant was putting vermillian on her forehead. 19. Written complaint (Ex. P-10) was made in Police Station, Bemetara on 15-1-2021 i.e. after two dayS of the incident. The reason mentioned for delayed FIR is said to be that it was lodged after informing the parents about the incident, but when the parents and the victim reside together, then such delay is not found to be justified, particularly when the mother (P.W. 1) of victim herself has deposed that, the victim has never informed her about the incident, rather the elder sister of the victim had informed her about the incident. 20. As per the case of the prosecution, alleged incident occurred at about 8.30 pm in night at open place behind the house of the victim. Spot map (Ex. P-12) prepared by the Patwari and Najri Naksha (Ex. P-2) prepared by the police, do not show that, there was availability of light at the place of incident. In cross-examination para 4, on one hand, the 10 victim (P.W. 2) has admitted the suggestion of learned counsel for the defence that, since the person had held her from behind, therefore, she could not see as to whether that person was accused or someone else. However, subsequently, she has said that after getting freed her from accused, when she was running away, from some distance, she saw the appellant/accused in the light of his mobile phone, but identifying a person in the light of mobile phone from distance is not found to be reliable as, she has not stated as to how much the distance was and the mobile phone has also not been seized by the police. It is also pertinent to mention here that, the Investigating Officer Neelkanth Sahu (P.W.3) has deposed in his deposition that, he did not find use of mobile phone in the alleged incident, therefore, he has not seized any such mobile phone. 21. Having considered the deposition of the victim (P.W. 2), her sister (P.W. 5), her mother (P.W. 1), it cannot be held beyond reasonable doubt that, if any incident was occurred with the victim, then it was the appellant/accused who committed it. Therefore, the appellant is entitled for benefit of doubt. 22. Thus, since, prosecution has failed to prove that on the date of incident, the victim was minor and further, since it has also failed to prove any offence against the appellant/accused, in the considered opinion of this Court, the impugned judgment of conviction and order of sentence passed by the Fast Track Court against the appellant/accused is not sustainable. Hence, I feel inclined to allow instant appeal. 11 23. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 354, 506-II of the IPC and section 8 of the POCSO Act are set aside and he is acquitted of the said charges granting him benefit of doubt. The appellant is on bail. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 24. Let a certified copy of this judgment along with original record be transmitted to the concerned Fast Track Court forthwith for needful. 25. The Criminal Appeal is allowed. Sd/- (Naresh Kumar Chandravanshi) Judge pathak