1 2025:CGHC:18011 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 507 of 2016 1 - Shriram Kerketta S/o Baliram Kerketta Aged About 35 Years R/o Village Kasedi, P.S. - Chando, Distt. Balrampur - Ramanujganj Chhattisgarh. , Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through P.S. Balrampur, Distt. Balrampur-Ramanujganj Chhattisgarh. , Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Anjiv Kumar Singh on behalf of Mr. Bhupendra Singh, Advocate For Respondent(s) : Mr. Rishabh Singh Deo, Panel Lawyer 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. 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 2 26.03.2016 passed in Sessions Case No. R-22/2015 by which the Additional Sessions Judge, Ramanujganj, District- Sarguja (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. 3. Case of the prosecution in brief is that on 10.12.2014 the appellant abducted the minor girl and took her to Delhi for human trafficking and came back to leave her at Delhi. PW-1, complainant Sushila Kerketta has lodged a report at police station Chado on 19.12.2014 that the appellant has took her daughter to Delhi by abducting her and on the basis of this allegation the police has registered crime against the appellant and arrested him on 26.12.2014. 4. After hearing learned counsel for the parties and appreciating evidence available on record, the trial Court vide judgment dated 26.03.2016 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. 5. 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. 3 6. Learned counsel for the appellant contended that the trial court has committed illegality in placing his reliance upon the evidence produced by the prosecution because the whole evidence of the prosecution witness suffers gross irregularities, omissions, contradictions and improvements. Hence the said judgment and order is not just and proper and liable to be set-aside. 7. On the other hand, learned counsel for the State opposes the 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. 8. 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. 9. 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-1), wherein date of birth of prosecutrix is mentioned as 03.03.1999. PW-9/ Prabhat Tirki who is the Assistant Teacher has admitted in para 4 of his cross-examination that the it is not mentioned in the register that on what basis the date of birth of prosecutrix is written as 3.03.1999. He also admitted that the birth certificate or affidavit of guardian of prosecutrix is not attached with the register (Article A-1). He admitted that the date of birth is entered in the Dakhil- 4 Kharij Register on the basis of the date of birth given y the parents and they do not check the authenticity of the date of birth given by the parents. 10. 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 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 5 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. 11. 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 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. 12.There is no any documentary evidence available on record that on what basis date of birth of prosecutrix 03.03.1999 is mentioned and also no birth certificate issued by the Corporation or Panchayat has 6 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 his cross-examination, assistant teacher (PW-9) admitted in para 4 of his cross-examination that the it is not mentioned in the register that on what basis the date of birth of prosecutrix is written as 3.03.1999. He also admitted that the birth certificate or affidavit of guardian of prosecutrix is not attached with the register (Article A-1). He admitted that the date of birth is entered in the Dakhil-Kharij Register on the basis of the date of birth given y the parents and they do not check the authenticity of the date of birth given by the parents. 13.The question before this Court is whether trial court is justified in convicting the appellant under Section 363 of IPC? 14.PW-1/ Sushila mother of prosecutrix has deposed in her examination- in-chief in para 3 that she asked her daughter/prosecutrix to return the money (Rs. 2000/-) which prosecutrix has taken. In para 4 she again stated that her daughter on Monday went with her friends in a fair and did not return at night. Then on Tuesday when she was searching her daughter then found that her daughter was sitting near river with her friends and upon being asked, she replied that she was with her friends. In para 5 this witness has stated that next day when she was 7 going for cattle grazing then her daughter was going to school. 15.PW-3/ prosecutrix has stated that she is a student of class 10th and had purchased a mobile phone but her mother used to scold her over purchasing mobile phone and used to say that she should study. In para 9 of her cross-examination she has admitted that she thought that she will be scolded by her parents over purchase of mobile phone that’s why she went to appellant. Appellant was going to Delhi for work therefore she also went with him to Delhi for work. She again admitted that her parents did not know that she had gone to Delhi for work therefore they have lodged a report against appellant. 16. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix went to Delhi with appellant on her own will. Nowhere she disclosed at any point of time that the appellant was taking her by forcefully. 17. 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 in the fear of getting scolded by her parents she did not returned her home and had gone to appellant. Since the trial court has held that on the date of incident, the prosecutrix was not minor, therefore the consent of the prosecutrix is acceptable. Hence, this Court is of the opinion that prosecutrix herself had gone to Delhi with appellant in fear of getting scolded by her parents. Therefore, in the above facts and circumstances of the case, offence under Sections 363 of IPC would not be made out against the appellant. 8 18. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 26.03.2016 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. 19. 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