1 2025:CGHC:18459 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.455 of 2016 Surajdev Cherwa S/o Mohan Ram Aged About 21 Years R/o Manikpur, P.S. Chalgali, District Balrampur-Ramanujganj, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Police Station Chalgali, District Balrampur-Ramanujganj Chhattisgarh. ---- Respondent ----------------------------------------------------------------------------------------------- For Appellant : Mr. Krishna Tandan, Advocate For Respondent-State : Mr. Shailendra Sharma, Panel Lawyer ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 23.04.2025 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant I, therefore, requested for assistance from a Counsel of the High Court Legal Aid Services Committee, Mr. Krishna Tandan, Advocate has been nominated to assist the Court. 2. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate, Mr. Krishna Tandan through the High Court Legal Services Committee and learned State 2 Counsel. In view of (2014) 14 SCC 222 (Surya Baksh Singh v. State of Uttar Pradesh), I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as his 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 29.02.2016 (Annexure A-1) passed in Sessions Case No.56/2011 by which the learned Additional Sessions Judge, Ramanujganj, District Balrampur- Ramanujganj (C.G.) has convicted and sentenced the appellant as under: Conviction Sentence In Default of Payment of Fine Under Section 376 of the IPC RI for 07 years and fine amount of Rs.5,000/- Additional RI for 04 months 4. Case of the prosecution, in short, is that on 09.11.2009, it is alleged that the appellant-accused lured the minor victim and took her away from her home. The next day, accused Suraj and his father Mohan took the victim to Pratappur and Ambikapur. On 15.11.2009, the victim and accused met in village Chainpur under Police Station Pratappur area. On this, they brought the victim to village Manikpur. On enquiry, she told that the accused had taken her away saying that they would get her married in the 3 Court and Surajdev/accused had raped her. In this regard, on 19.11.2009, a report was lodged by the victim's father in Police Station Chalgali. 5. On the basis of aforesaid report, a case was registered against the accused under Sections 363, 366, 376 read with Section 34 IPC. In this regard, First Information Report No. 50/2009 was registered at Chalgali Police Station and investigation was conducted. 6. After completion of investigation, a charge sheet under Sections 363, 366, 376 (2)(g) IPC was filed by the Police of Chalgali Police Station before Judicial Magistrate First Class, Wadrafnagar on 12.04.2010 against accused Mohan Ram and absconding accused Surajdev. 7. As per the surrender order dated 07.01.2011 passed by the Judicial Magistrate First Class, Wadrafnagar, District-Balrampur-Ramanujganj, Chhattisgarh in Criminal Case No. 73/2010, Chhattisgarh State against Mohan Ram and 1 other, Sections 363, 366, 376 (2) (g) IPC, the case was transferred to the Sessions Judge, Surguja. As per the order of the Sessions Judge, Surguja, dated 24.01.2011, the case was transferred to Additional Sessions Judge (FTC), Pratappur for trial. As per the order of Sessions Judge, Surguja Ambikapur, dated 03.05.2012, the case has been received on transfer in this Court for due disposal on 05.05.2012. 8. In order to establish the charge against the appellant, the prosecution has examined as many as 08 witnesses. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he 4 denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case. After appreciation of evidence available on record, learned trial Court has convicted the appellant and sentenced him as mentioned in paragraph two of this appeal. Hence this appeal by the appellant. 9. Learned counsel for the appellant contended that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. He further contended that the learned trial Court has misappreciated the statements of the witnesses on the basis of which the conviction has been held. There is a vital contradiction between the prosecution witnesses on the basis of which the appellant is convicted and sentenced. He further contended that the learned trial Court ought to have appreciated the fact that the prosecutrix not supported the fact of committing rape by the present appellant is her chief-examination and considering the above fact the bail has been granted to the appellant by the Court. The learned trial Court ought to have held that the prosecution fails to establish the age of the prosecutrix that during the incident she was less then 18 years. It is therefore, prayed, that this Court may kindly be pleased to allow this appeal and acquit the appellant from the charge levelled against him. 10. Per contra, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that there is 5 no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 11. I have heard learned counsel for the parties, and perused the record with utmost circumspection. 12. Prosecutrix (P.W.-1) has stated in Para-1 of her Court statement that on the date of the incident, when she left for nature’s call at 8-9 p.m., the accused Surajdev met her and said that come with him or else he will kill her. The accused Surajdev first took her to his house at Manikpur. After that, he took her to Ambikapur by bus from there. He had got the marriage document prepared in Ambikapur Court, but he could not get her signature on the document. From Ambikapur, he took her to Pratappur, where the accused stayed at the house of Surajdev's mother's sister. From there, he took her to Amandon village. Surajdev's cousin lived in Amandon. From there, he took her to Chainpur, the house of his brother and sister-in-law. They stayed in Chainpur for 2-3 days. In Chainpur, her parents, uncle, Rajesh and Suresh came searching for her and took her back with them. 13. In Para-3, this witnesses has stated that she did not tell anyone in the bus that the appellant was taking her forcibly and when the appellant was taking her, she did not cry. She further stated that when the appellant was taking her from Ambikapur to Pratappur, she had not tried to escape. 14. Father of the prosecutrix (PW-2) has stated in his statement that on the 6 date of the incident, his daughter had gone out at night to attend the nature’s call. Accused-Surajdev had taken her away by luring her. In the morning, it was found that someone had kidnapped the girl. The next day, they started searching. The accused had taken his daughter to Pratappur and from there to Ambikapur. Some person from Manikpur told him that his daughter had eloped with accused Surajdev. First, they went to Pratappur, from there to Ambikapur, from there to Chainpur, where his daughter was found. Suresh, Rajesh, Ramniwas, Shivlochan and other people from the village had gone with him. They brought the prosecutrix at home from Chainpur. When his daughter was found in Chainpur, the accused was Surajdev, not any other accused. With regard to age of the prosecutrix, he stated that at the time of incident, age of the prosecutrix was 15 years. 15. Dr. Shipra Shrivastava (PW-7) who examined the prosecutrix has stated that she posted as a Gynecologist in the District Hospital, Ambikapur since July, 1995. On 21.11.2009, she exained the prosecutrix. The prosecutrix was about 15 years old. On examination, she found that she was physically and mentally healthy as per her age. On internal examination the hymen was already torn. Two fingers were entering the vagina easily without any pain. Two slides were prepared from the vaginal discharge and were sent for chemical examination. She opined that since the prosecutrix was used to having sex, no definite opinion 7 could be given about impromptu sex. She advised chemical examination of the slide to confirm impromptu sex. Her examination report is Ex.P-8. 16. In her cross-examination, this witness has stated that there is no any injury at any part of the body of the prosecutrix. 17. On the basis of the statement of prosecutrix and all other evidence adduced the trial Court has found that the prosecutrix was consenting party to the incident took place with the appellant, the report was made and thus from the entire evidence on record, no error is reflected in the opinion/conclusion of the trial Court that the prosecutrix was consenting party to the act performed with appellant. 18. The appellant has been convicted by the trial Court under Section 376 IPC on the ground that at the time of the incident the prosecutrix was found to be a consenting party of below 16 years of age, therefore, it is mainly a matter of consideration as to whether the prosecution has been able to prove that the prosecutrix was a minor below 16 years of age at the time of incident? The prosecutrix (PW-1) herself has not been able to tell her date of birth in her Court statement. Her father (P.W.2) has stated in his Court statement that at the time of incident, age of the prosecutrix was 15 years, but there is no any document has been produced with regard to age of the prosecutrix and also not told any date of birth of the prosecutrix. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less 8 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. There is no any Kotwari Register or ossification report, produced by the prosecutrix to determine her actual age on the date of incident, that she was below 18 years of age. Therefore, what would be its legality and evidentiary value has to be considered. 19. It is well settled legal proposition that the entry in the Dakhil Kharij register also cannot be relied upon unless its probate value in terms of provisions of section 35 of the Evidence Act is proved. 20. The Hon’ble Supreme Court in case of Babloo Pasi Vs. State of Jharkhand (2008) 13 SCC 133, held that the School register is relevant and admissible, but is not of much evidentiary value in absence of the material on which the age was recorded. Para 28 is relevant and quoted below: "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 9 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 v. Anand Purohit 1988 Supp SCC 604." (Emphasis supplied) 21. Further, the Hon’ble Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry of the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value, but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:- 10 "14. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. "14.... The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value." 15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in 11 the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case." 22. The Hon'ble the Apex Court in the matter of Alamelu & Another Vs. State represented by Inspector of Police, (2011) 2 SCC 385 held that "the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined". 23. Now, 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 the Hon’ble Supreme Court, I found that no clinching and legally admissible evidence has been brought by the prosecution to prove 12 the fact that the prosecutrix/victim was minor and less than 18 years of age on the date of incident. Accordingly, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching or reliable evidence. 24. The prosecutrix has admitted in her statement under Section 164 of the Cr.P.C. that on the date of the incident, when she left for nature’s call at 8-9 p.m., the accused Surajdev met her and said that come with him or else he will kill her. The accused Surajdev first took her to his house at Manikpur. After that, he took her to Ambikapur by bus from there. He had got the marriage document prepared in Ambikapur Court, but he could not get her signature on the document. From Ambikapur, he took her to Pratappur, where the accused stayed at the house of Surajdev's mother's sister. From there, he took her to Amandon village. Surajdev's cousin lived in Amandon. From there, he took her to Chainpur, the house of his brother and sister-in-law. They stayed in Chainpur for 2-3 days. In Chainpur, her parents, uncle, Rajesh and Suresh came searching for her and took her back with them. 25. In Para-3, this witnesses has stated that she did not tell anyone in the bus that the appellant was taking her forcibly and when the appellant was taking her, she did not cry. She further stated that when the appellant was taking her from Ambikapur to Pratappur, she had not tried to escape. 26. Close scrutiny of the evidence led by the prosecution would make it clear 13 that the prosecutrix has nowhere disclosed that at any point of time, the appellant was taking her forcefully from one place to another place and has committed raped, she had also not tried to escape from the appellant, it appears that it is a case of elopement. Dr. Shipra Shrivastava (PW-7) who examined the prosecutrix has stated that on examination of the prosecutrix, she found that she was physically and mentally healthy as per her age. On internal examination the hymen was already torn. She opined that since the prosecutrix was used to having sex, no definite opinion could be given about impromptu sex. She advised chemical examination of the slide to confirm impromptu sex. In her cross- examination, this witness has stated that there is no any injury at any part of the body of the prosecutrix. 27. In view of the foregoing discussion, this Court is of the considered view that the prosecutrix was a consenting party inasmuch as the prosecution has not been able to conclusively prove the age of prosecutrix to be below 16 years. Therefore, no offence is made out against the appellant under Section 376 IPC. Accordingly. the impugned judgment of conviction and order of sentence against the appellant cannot be sustained and is set aside. The appellant is acquitted of the charge u/s 376 of IPC. 28. In the result, the appeal is allowed. If the appellant is on bail, his bail bonds shall continue for a further period of six months as per Section 14 437-A of Cr.P.C. 29. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary action, if any. Sd/- (Arvind Kumar Verma) Judge Vasant