1 2025:CGHC:18009 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 319 of 2016 1 - Suraj Sharma S/o Birendra Prasad Sharma Aged About 25 Years R/o Ward No. 43 Lokholi, Santoshi Nagar, Police Station Kotwali, District Rajnandgaon, Chhattisgarh., Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Dongargaon, District Rajnandgaon, Chhattisgarh., Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Abhishek Sharma, Legal Aid Advocate For Respondent(s) : Mr. Jitendra Shrivastava, G. A. Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 21/04/2025 1. With the consent of the parties the present appeal is heard finally. 2. Today when the matter is called out for hearing, no one appeared on behalf of the appellant. I, therefore, requested for assistance 2 from a counsel of the High Court legal aid services committee, Mr. Abhishek Sharma, Advocate has been nominated to assist the Court. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) SCC 222 (Surya Baksh Singh Vs. State of Uttar Pradesh), I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as her interest has been duly taken care of by nominating another counsel from the High Court Legal Services Committee. 3. 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 dated 23.02.2016 passed in Special Sessions Case No. 31/2015 by which the Court of Fast Track Court of Additional Sessions Judge and Special Judge POCSO Act, 2012, Rajnandgaon (C.G.) has convicted and sentenced the appellant as under :- Conviction Sentence U/s 363 of IPC R.I. for 7 years and fine of Rs. 4000/-, in default of payment of fine, additional imp. for 6 months. 4. Case of the prosecution in brief is that on 18.02.2015 father of the girl lodged a missing report against an unknown person. Thereafter, the girl namely Ku. Arti Shukla recovered from the house of the appellant and statement of girl has been recorded 3 and she stated that the appellant abducted her and committed forceful intercourse. Thereafter, the appellant was arrested and charge sheet was filed. 5. After hearing learned counsel for the parties and appreciating evidence available on record, the trial Court vide judgment dated 23.02.2016 convicted and sentenced the appellant/accused for the offence punishable under Sections 363 of IPC in the manner as described above of this judgment. Hence, this appeal. 6. In order to prove the charges against the appellant, prosecution examined as many as 12 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. After completion of trial, Trial Court convicted and sentenced the appellant in the manner as described above. Hence, this appeal. 7. Learned counsel appearing for the appellant contended that prima facie there is no evidence that the appellant kidnapped the girl from lawful guardianship. Learned court failed to appreciate that there is contradictory statement of PW-1 and PW-2 regarding kidnapping of her girl and prima facie recovery of the girl is also disputed because PW-4 Ku. Arti Shukla does not at all supported the version of prosecution. He further contended that learned Court below failed to appreciate para 7 of statement of PW-4 that 8. On the other hand, learned counsel for the State opposes the 4 submissions of learned counsel for the appellant and submits that the 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 and the impugned judgment of the Court below needs no interference. 9. 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. 10. The trial court has acquitted the accused from the charges under Section 376(2)(i)(n) of IPC and under Section 6 of POCSO Act, 2012 on the basis of the statement of PW-1/father of prosecutrix that he admitted her daughter in the school but today he did not remember the date of birth of her daughter and looking to the statement of PW-6 Dr. Ragini Chandre who medically examined the prosecutrix gave her report (Ex. P/10) wherein she stated that secondary sexual characters were developed and hymen of prosecutrix was ruptured. However, in her cross- examination she has admitted in para 4 that hymen can be ruptured by cycling, playing sports and she has not found any evidence of rape. The prosecutrix did not deposed that accused committed rape with her. 11.Aricle A-12 is the Dakhil-Kharij Register wherein the date of birth 5 of prosecutrix is mentioned as 12.12.1999 and P.W.-11/ Bhagwat Das Rawate who is the head master of the school has admitted in para 3 of his cross-examination that he is not the author of Dakhil- Kharij Register. 12. There is no any documentary evidence available on record that on what basis date of birth of prosecutrix is mentioned as 12.12.1999 , no equivalent matric certificate 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. 13. 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 6 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 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 7 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. 14. 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 8 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 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 9 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." 15. Now the question before this Court is whether trial court is justified in convicting the appellant under Section 363 of IPC? 16. PW-1/ prosecutrix has deposed in her examination-in-chief that on the date of incident she had an argument with her sister Puja because of which she got upset and left her house. She called the accused and asked him to take her with him, upon which the accused came and took the prosecutrix with him. She has also deposed that she stayed with accused around 1 month at his house. In para 4 the prosecutrix stated that she established physical relation with the accused when she was living at his house. In para 6 she stated that she called the accused and asked him to take her along with him. Then the accused came and took her. In para 7 of her cross-examination, the victim admitted that on the date of incident, she met with the accused near Sai Mandir and from their took her to Lakholi, Rajnandgaon. Further in para 11, she again admitted that she knows the accused from past 3 years. She wanted to marry accused. By establishing physical relation she meant to hug each other. Apart from this, nothing has 10 happened between the victim and the accused. 17. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix was a consenting party. Nowhere she disclosed at any point of time that the appellant was taking her by forcefully and appellant has committed sexual intercourse with her without her consent. 18. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to kidnapping of the prosecutrix, the prosecutrix herself has admitted that she called the accused and went with along with him on her own will. The prosecution has failed to prove that prosecutrix was minor on the date of incident, therefore it is proved that prosecutrix was not minor. Thus, the consent of the prosecutrix is acceptable. Hence, this Court is of the opinion that prosecutrix was a consenting party. Therefore, in the above facts and circumstances of the case, offence under Sections 363 of IPC would not be made out against the appellant. 19. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 23.02.2016 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be on bail. His Bail bonds 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. 11 20. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. SD/- (Arvind Kumar Verma) JUDGE Madhurima