1 2025:CGHC:51453 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 676 of 2022 Tulsiram Patel S/o Chhedilal Patel Aged About 50 Years (Presently 53 Years) R/o Amora, Police Station Jarhagaon, District Mungeli, Chhattisgarh. --- Appellant versus State Of Chhattisgarh Through Police Station Masturi, District Bilaspur, Chhattisgarh. --- Respondent CRA No. 725 of 2022 Ramesh Dhuri S/o Shri Lachchhi Ram Dhuri Aged About 22 Years R/o Village - Nawagaon (Amora), Police Station - Jarhagaon, Civil And Revenue District - Mungeli Chhattisgarh. ---Appellant Versus State Of Chhattisgarh Through The Station House Officer, Police Station - Masturi, Civil And Revenue District-Bilaspur Chhattisgarh. --- Respondent {Cause title taken from Case Information System} ------------------------------------------------------------------------------------------------------ For Appellant : Shri Achut Tiwari, Adv. in Cr.A. No. 676 of 2022 For Appellant : Shri P.M. Shriwas, Adv. in Cr.A. No. 725 of 2022 For Resp./ State : Ms. Mukta Tripahti, Panel Lawyer. ------------------------------------------------------------------------------------------------------ (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) Judgment on Board 15/10/2025 1. As both the aforementioned appeals are arising out of the same 2 l; judgment dated 29th March, 2022 passed in Special Criminal Case (Pocso Act) No. 122 of 2018, they are being heard together and decided by this common judgment. 2. These appeals are directed against the impugned judgment of conviction and order of sentence dated 29.03.2022 passed by Upper Sessions Judge Second Fast Track Special Court, Bilaspur (C.G.) {Fast Track Court} in Special Criminal Case (POCSO Act) No. 122 of 2018, whereby the learned Fast Track, after holding the appellants guilty, convicted and sentenced each of them in the following manner:- Conviction Sentence Under Section 363 read with Section 34 of IPC Rigorous imprisonment for three years with fine of Rs.1,000/-, in default of payment of fine, to further undergo additional simple imprisonment for six months. Under Section 354 read with Section 34 of the IPC Rigorous imprisonment for three years with fine of Rs.1,000/-, in default of payment of fine, to further undergo additional simple imprisonment for six months. Under Section 7 & 8 of the POCSO Act Rigorous imprisonment for three years with fine of Rs.1,000/-, in default of payment of fine, to further undergo additional simple imprisonment for six months. All the sentences were ordered to run concurrently. 3 3. Case of the prosecution, in brief, is that minor victim was studying in class XII at the time of incident. On 17.09.2018, when she came out from school after participating quarterly examination, at that time, both the appellants were sitting in Maruti Suzuki Wegnor Car bearing registration No. CG 28-B-9396 (for brevity, ‘Car’) outside the school, they forcefully held her and took her inside the car. Somehow the victim got escaped from the clutches of the appellants/accused persons and came out from the car and on being screamed by her, villagers came there and called father of victim as well as Police. In this regard, written complaint (Ex.P-8) was filed by the victim (PW-5). Based on which, FIR (Ex.P-9) was registered by the Police Station Masturi, District Bilaspur against unknown persons for the offences punishable under Sections 363, 354 read with Section 34 of the IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (henceforth, ‘POCSO Act’). Statement of victim under Section 164 of Cr.P.C. (Ex.D-1) was recorded before the Judicial Magistrate First Class, Bilaspur. Statements of victim as well as other witnesses were also recorded under Section 161 Cr.P.C. The victim / prosecutrix was medically examined by Dr. Mahendra Kumar Madhukar (PW-2), in which, vide MLC report (Ex.P-2), he opined that no any defect is found, though the victim was complaining of pain in the wrists of both hands. Dakhil Kharij register (Article ‘A’) pertaining to the victim from Govt. Primary School, Eramsahi, Block Masturi, District Bilaspur was seized from Vinod Kumar Singh (PW-6), Incharge Head Master of the School vide seizure memo (Ex.P-1). Spot map was prepared by the police as well as Patwari vide Ex.P-3 & Ex.P-4, respectively. Alleged ‘Car’ was seized from appellant – Tulsi Ram Patel vide seizure memo (Ex.P-5). Both the appellants were arrested vide Arrest Memo (Ex.P-6) & (Ex.P-7), respectively. 4 4. After completion of investigation, charge-sheet for the offence under Sections 363, 354 read with Section 34 of the IPC and Section 8 of the POCSO was filed against both the appellants before Fast Track Court / trial Court. 5. Learned Fast Track Court framed charges under Sections 363/34, 354/34 of IPC and Sections 7 / 8 of the POCSO Act against both the appellants, who abjured their guilt and entered into defence. 6. In order to establish the charges against the accused persons, the prosecution has examined as many as 11 witnesses. Statement of the accused persons under Section 313 of the Cr.P.C. have also been recorded, in which they denied all the incriminating circumstances appearing against them in the prosecution evidence claiming themselves to be innocent and false implication. Apart from this, appellant /accused – Tulsi Ram Patel has examined himself as DW-1 and one Shiv Ranjan Ratre as DW-2 in his defence. 7. After appreciation of oral as well as documentary evidence available on record, learned Fast Track Court relying on evidence adduced by the prosecution held guilty both the accused persons for the offence under Sections 363/34 & 354/34 of IPC and Section 7/8 of the POCSO Act and sentenced each of them, as has been mentioned in opening paragraph of judgment. Hence, this appeal. 8. Mr. Achut Tiwari, learned counsel appearing for appellant – Tulsiram Patel would submit that appellant Tulsiram Patel was very well known to victim and her family member, as her father had taken her to appellant – Tulsiram Patel to administer Jhad Fuk to her from him. He further submits 5 that at that time, father of victim had borrowed Rs.15,000/- from appellant Tulsi Ram Patel, which was not being returned by him, therefore, on the date of incident, he had gone in his Car, being driven by his driver i.e. Appellant – Ramesh Dhuri, despite request made by him, father of victim did not agree to return the amount, rather he alongwith other villagers, both the appellants were assaulted, therefore, they had sustained injuries. In this regard, MLC report of appellant Tulsiram Patel vide Ex.P-3 was also sought for by the Station House Officer, Masturi, which has also been admitted by Sub Inspector - H.R. Yadu (PW-7), who is Investigating Officer of the case. 8.1 Learned counsel appearing for appellant – Tulsiram Patel would submit that the victim has been held to be minor by the trial Court merely on the basis of Dakhil Kharij Register (Article 'A') produced before it, but it is settled law that only on the basis of entry made in Dakhil Kharij Register with regard to date of birth, age of person cannot be determined conclusively in criminal cases. He further submits that both the legs of the appellant – Tulsiram Patel are affected by polio, hence he cannot even stand on his feet. This fact has not only been admitted by H.R. Yadu (PW-7), Investigating Officer of the case, rather father of victim (PW-4) has also admitted in paragraph 10 of his cross-examination, therefore, allegations levelled against appellant – Tulsiram Patel that he dragged victim in the car holding her hand or waist cannot be relied upon. He further submitted that the evidence of the Investigating Officer - H.R. Yadu (PW-7) and the MLC report (Ex.D-3) of the appellant Tulsiram Patel proved that he had sustained injuries at the time of the incident, but no explanation has been given by the prosecution as to how he sustained injuries, which not only show the truthfulness of defence taken by appellant – Tulsiram Patel in his deposition, rather it also proved the fact 6 that the prosecution has not brought true facts before the Court. He lastly submits that except deposition of victim, no other independent witnesses namely, Narottam Soni (PW-9) & Ramvilas Khandekar (PW-11), who are said to be eye witnesses to the incident, have supported the case of the prosecution. Other factual witnesses is father of victim, but he is hearsay witness. Other witnesses are formal witnesses, despite that learned trial Court held appellant's guilty for alleged offence, therefore, it is prayed that the appeal may be allowed and appellant may be acquitted of the alleged charges by setting aside impugned judgment passed by the Fast Track Court. 9. Learned counsel appearing for the appellant - Ramesh Dhuri would submit that this appellant has no involvement in the issue between the parties, rather he had gone with appellant – Tulsiram Patel under his instructions by driving his car, he was not aware about any of the issue, despite that he was also assaulted by villagers, though he was not medically by police. He has extended his support to the contention made by learned counsel for appellant – Tulsiram Patel in respect of other merits of the case. 10. Per contra, learned State Counsel would submit that judgment passed by learned Fast Track Court is based on well appreciation of evidence available on record, which does not call for any interference in this appeal. 11. I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and went through the record of the courts below with utmost circumspection. 7 12. The first and foremost question, which arises in the instant case is that whether finding recorded by learned Fast Track Court that victim was minor on the date of incident is valid or not ? 13. Victim (PW-5) has stated in her deposition that at the time of incident, she was studying in class XII and her date of birth is 31.07.2002. Father of the victim (PW-4) has also stated that date of birth of her daughter i.e. victim is 31.07.2002, but they have not stated the basis of their aforesaid statement, as to whether birth certificate of victim was got prepared or her date of birth was recorded in Kotwari record, etc. or not. 14. Undisputedly, at the time of incident, the victim/prosecutrix was studying in class XII. After completion of 6 years of age, the student gets admission in Class 1 (1st), because as per Right to Education (RTE) Act 2009 and National Education Policy (NEP) 2020, the minimum age of the child for admission in Class 1 is 6 years. On the date of incident i.e. on 17.9.2018, the victim was studying in class XII. On this count, her age on the date of incident is found to be about 18 years. Even otherwise, “it is settled proposition of law that the age of a person cannot be held proved merely on the basis of the date of birth mentioned in Dakhil Kharij register.” In this regard, prosecution case is based on Dakhil Kharij register/school record of the prosecutrix. 15. In the matter of Gorkhi Vs. State of UP1, 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) 1 (2006) 5 SCC 584 8 “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 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) 16. Same proposition was reiterated in the matter of Babloo Pasi Vs. State of Jharkhand and another2 [(2008) 13 SCC 133] wherein the following material observations were made at paras-28 to 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 2 (2008) 13 SCC 133 9 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…………………………...” 17. 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 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. 18. Taking the aforesaid situations as has been envisages by the Supreme Court in afore-cited case with the facts of the present case, then it would clearly reveal that to prove the date of birth of victim, apart from her and her father’s statements, only Dakhil Kharij register (Article ‘A’) has been proved by the prosecution, but neither it has been proved that who got recorded that date of birth of victim in the School record nor it has been proved that on the basis of which document, it was got recorded. Further, since victim was studying in Class 12th at the time of the incident, it also appears that she had attained or about to attain the age of 18 years at the time of the incident, but learned Fast Track Court without any lawful evidence merely on the basis of Dakhil Kharij Register (Article ‘A’) has held that the victim was minor on the date of incident, which is found to be perverse and illegal, hence, this finding recorded by the Fast Track Court 10 deserves to be set aside. 19. So far as allegation of kidnapping and molestation / sexual assault of victim is concerned, the victim (PW-5) has deposed that when she came out from School, at the time of incident, appellant - Ramesh Dhuri was sitting on driving sheet of the car whereas appellant Tulsi Ram Patel was sitting on rear sheet of the said car. She has deposed that appellant – Tulsi Ram Patel had dragged her into the car, therefore, she got free from the clutches of appellant – Tulsi Ram Patel and screamed, upon which villagers came there and called her father. Thus, as per the statement of the victim, only the appellant - Tulsi Ram Patel had dragged her into the car, but in her statement recorded under Section 164 CrPC, she has stated that both the appellants caught hold her hand and forcibly took her into the car. 20. H.R. Yadu (PW-7), has admitted in paragraph 21 of his cross- examination that appellant Tulsi Ram Patel is handicapped in his legs. 21. Father of victim (PW-4) has specifically admitted in paragraph 10 of his cross-examination that both the lags of accused Tulsiram Patel are impaired and he cannot walk, rather he could walk with the help of crutches (oS’kk[kh). If physical condition of appellant – Tulsiram Patel is like that, that even he could not stand on his lags without help of crutches, then how could he have pulled the victim from outside the car and put him into the car? 22. Narottam Soni (PW-9) and Ramvilas Khandekar (PW-11), who are said to be the eye-witnesses to the incident, have not supported the case of the prosecution at all. Father of the victim (PW-4) reached on the spot subsequent to the alleged incident, to whom victim narrated the entire incident itself, thus, he is hearsay witness. 11 23. Having considered the aforesaid facts, particularly physical condition of appellant – Tulsiram Patel, who is handicapped in his legs, and not deposing by victim in her court statement that appellant – Ramesh Dhuri had also involved in dragging her into the car, only on the basis of unsupported statement of victim, it cannot be held that appellants had dragged her into the car by holding her hands or waist and thereby molested / sexually harassed her. 24. Sub-Inspector - H.R. Yadu (PW-7), who is Investigating Officer of the case, has admitted in paragraph 17 of his cross-examination that he had got medically examined appellant – Tulsiram Patel, in which, Doctor, who medically examined appellant – Tulsiram Patel, had opined that he had sustained injuries, but this witness has specifically admitted that he did not examine the circumstances in which the injuries were sustained by appellant Tulsiram Patel. Father of victim (PW-4) has also admitted in paragraph 14 of her cross-examination that when police came on the spot, at that time, appellant Tulsiram Patel was lying on the floor in injured condition. 25. Appellant – Tulsiram Patel (Defence Witness No. 1) has deposed that since he had gone to get money back from father of victim, therefore, he and his accompanied persons assaulted him, therefore, he had also sustained injuries, which also get support from deposition of Shivrajan Ratre (DW-2) and MLC report (Ex. D-3) of appellant – Tulsiram Patel, in which, he has sustained lacerated wound in the size of 1 cm X 1 cm on right angle of mouth (upper lip) and stitch wound on left parietal side of scalp, which is reported to be simple in nature. 26. Thus, since prosecution has not explained to the fact as to how and in what circumstances, appellant – Tulsiram Patel had sustained injuries, 12 therefore, it seems that prosecution has not projected the true facts pertaining to the incident. 27. In the case of Lakshmi Singh v. State of Bihar 3 , in which accused persons has been convicted under Section 302 read with Section 149 IPC, Hon’ble Supreme Court has an occasion to consider the issue of non- explanation of injuries sustained by the accused and while referring to its earlier judgments on the said issue, observed in paragraph 12 as under :- “12 …........It seems to us that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any 3 (1976) 4 SCC 394 : 1976 SCC (Cri) 671 13 injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non- explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit- worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises. 28. A similar view with regard to non-explanation of injuries has been taken by the Supreme Court also in the case of State of Rajasthan vs. Madhav4 and State of M.P. vs. Mishri Lal 5 and in the case of Nand Lal vs. State of Chhattisgarh 6 29. Though, in instant case, the appellants have not been convicted for the offence like 302 IPC, despite that if appellants have sustained injuries at the time of alleged incident, the prosecution ought to have explained those circumstances of sustaining injuries by them. Not submitted any plausible explanation creates doubt towards truthfulness of the incident. 30. In view of the foregoing discussion, it is found that it is not proved by the prosecution beyond reasonable doubt that victim was minor on the date of incident and the appellants dragged her into the car and thereby they kidnapped or molested her, despite that without any lawful and cogent evidence, learned trial Court has held guilty to the appellants for the alleged 4 1991 Supp. (2) SCC 396 5 2003 (9) SCC 426 6 2023 (10) SCC 470 14 offences, which are not found to be sustainable. Hence, I feel inclined to allow instant appeal. 31. In the result, both the Appeals are allowed. Conviction and sentence imposed on the appellants under Sections 363/34 & 354/34 of the IPC & Section 7/8 of the POCSO Act are set aside and they are acquitted of the said charges. The appellants are reported to be on bail. They need not surrender. The bail bonds furnished by them 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. 32. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. 33. The Criminal Appeals are allowed. Sd/- (Naresh Kumar Chandravanshi) Judge amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.10.30 11:25:05 +0530