1 2025:CGHC:55099 The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full …... …. -- 13.11.2025 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1046 of 2003  Raju Kumar, S/o Babulal, aged about 22 years, R/o Gram Banari, Thana Champa, District Janjgir-Champa (C.G.) ---- Appellant Versus  State of Chhattisgarh Through : Police Station Janjgir, District Janjgir-Champa (C.G.) ---- Respondent For Appellant. - Mr. Gurudev I. Sharan, Advocate. For Respondent - Mr. Sunita Sahu, P.L. Hon'ble Smt. Justice Rajani Dubey (Judgment on Board) 12.11.2025 1. This appeal arises out of the judgment of conviction and 2 order of sentence dated 26.09.2003 passed by the learned 4th Additional Sessions Judge (F.T.C.), Janjgir, District Janjgir-Champa (C.G.) in Sessions Trial No.255/2003 convicting the accused/appellant under Sections 363, 366 of the IPC & sentencing him to undergo R.I. for 03 years with fine of Rs.200/- and R.I. for 03 years with fine of Rs.200/- respectively, with default stipulations. All the sentences were directed to run consequently. 2. The prosecution story, in brief, is that prosecutrix (PW-1) lived with her parents at village Putpura. On 11.05.2003 at about 9.00 a.m., dather of prosecutrix (PW-2) went out to attend the marriage ceremony at village Pali and when he came back to the home on 12.5.2003 at about 3.00 to 4.00 a.m., he came to know by his wife and mother of prosecutrix (PW-3) that his daughter was not present in the home. Thereafter, father of prosecutrix (PW-2) searched the prosecutrix (PW-1) around the village but she could not be found. Thereafter, father of prosecutrix (PW-2) went to village Banari to search the prosecutrix in her aunt’s house where he came to know from Dhanaram Suryavanshi that the accused/appellant abducted his daughter and he might have taken the prosecutrix to village Khokhsa. Thereafter, the father of prosecutrix (PW-2) and his father Namman went to village Khokhsa and found that the accused/appellant had kept the prosecutrix in the house of 3 Sakha Ram Suryavanshi after alluring her on the pretext that he would keep her as his wife. Further case of the prosecution is that the accused/appellant established physical relationship with the prosecutrix against her Will and continued to do so on. Thereafter father of prosecutrix (PW-2) made a report against accused/appellant and on his report, an FIR (Ex.P-2) was lodged against him under Sections 363 and 366 of IPC. After obtaining the consent of the prosecutrix (PW-1) vide Ex.P-1 and necessary permission from S.D.O. vide Ex.P-11, the prosecutrix was sent for medical examination to District Hospital, Janjgir- Champa (C.G.) vide Ex.P-12, where she was medically examined by Dr. (Ms.) Rama Ghosh (PW-12) who gave her report under Ex.P-12A opining that the prosecutrix (PW-1) was habitual for sexual intercourse, prepared two vaginal slides and handed over to constable for its chemical examination. The accused/appellant was also medically examined by Dr. Arvind Dwivedi (PW-7) who have his report under Ex.P-6 opining that the accused/appellant is young adult and capable of performing sexual intercourse. The copy of school admission registered was seized under Ex.P- 7C. Certificate regarding date of birth of prosecutrix given by Headmaster, Janpad Primary School was seized under Ex.P-8, according to which the date of birth of prosecutrix was 15.02.1988 and she was below 18 years of age at the 4 time of incident. Seized articles like vaginal slides of the prosecutrix, her undergarment, underwear of the accused/appellant stained like sperm were sent to FSL, Raipur. After being found the involvement of the accused/appellant in the crime, he was arrested vide arrest memo Ex.P-15. 3. During investigation, statement of the witnesses were recorded and after completion of the entire investigation, charge sheet was filed against the accused/appellant under Sections 363, 366, 376 of IPC and the learned trial Court framed charges against the accused/appellant under Sections 363, 366, 376 (1) of IPC. 4. So as to hold the accused/appellant guilty, the prosecution examined as many as 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record, while acquitting the accused/appellant from the charge under Section 376(1) of IPC, convicted and sentenced him as mentioned in para-1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that the 5 conviction and sentence of the appellant is bad, improper, incorrect and illegal. There is no valid and legal document on record regarding the date of birth of the prosecutrix and the prosecution has failed to conduct ossification test to ascertain the majority of the prosecutrix, as such, the conviction of the appellant under Section 363 and 366 of IPC is not sustainable. Further, the prosecution has failed to produce Kotwari register which is normally used int eh village for the purpose of registration of birth of newly born child. The learned Trial Court did not consider the fact that the prosecution neither examined the person who recorded the date of birth of the prosecutrix in Dakhil Kharij register nor examined the person by whom the name of the prosecutrix was registered. The learned Trial Court erred in holding the age of prosecutrix below 18 years as it is only supported by the Dakhil Kharij register, whose author was not examined by the prosecution. Learned counsel also submits that prosecutrix (PW-1), her father (PW-2) and mother (PW-3) have only stated the age as 15 or 16 merely on presumption, which is not supported by any substantive piece of evidence. The learned Trial Court did not consider the fact that the prosecutrix accompanied the appellant to many places and during these period she did not make any hue and cry and came to his disposal which speaks in volume that she was a consenting party to the act of the 6 accused/appellant. Therefore, the present appellant is entitle for acquittal. 7. In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police reported in (2011) 2 SCC 385. 8. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance law and there is no infirmity in the same. 9. I have heard learned counsel for the parties and perused the material available on record. 10. It is clear from the record of the learned trial Court that the learned trial Court framed charges against the accused/appellant under Sections 363, 366 and 376 (1) of IPC and after appreciation of oral and documentary evidence, the learned trial Court while acquitting the accused/appellant from the charge under Section 376 (1) of IPC, convicted him under Section 363 and 366 of IPC. 11. The question which arises for consideration before this Court is whether the Prosecutrix on the date of incident was minor ? 12. The learned trial Court recorded the finding that the prosecutrix (PW-1), on the date of incident, was below 18 years of age but above 16 years of age. While recording 7 such finding, the learned Trial Court relied upon the evidence of Rohit Ram (PW-8), Headmaster, Primary School, Putpura. According to the evidence of PW-8, the school admission register is Ex.P-7, wherein the name of prosecutrix finds place at Sl. No.1605 and the date of birth of prosecutrix (PW-1) is 15.02.1998. In cross-examination, this witness has admitted the suggestion of defence that in Dakhil Kharij register, there is no mention of the name of person who got admitted the prosecutrix in school. This witness has also admitted that the date of birth of the prosecutrix was entered on the basis of Tatima but today he did not bring Tatima form. It is apparent from the evidence of this witness that the prosecutrix was admitted in school on 06.07.1994 and PW-8 was posted in the school from 1996 i.e. prior to recording the details of the prosecutrix, as such, the entry of date of birth of the prosecutrix was not made by this witness. 13. Prosecutrix (PW-1) has admitted this suggestion of defence in para 21 of her cross-examination that she is telling her age to be 15 years approximately. 14. Father of prosecutrix (PW-2) has stated in his evidence that the age of his daughter is about 16 years. He has admitted the suggestion of defence in para 08 of his cross- examination that he is telling the age of his daughter (PW-1) approximately and he could not tell his own and his 8 daughter’s date of birth. 15. Mother of prosecutrix (PW-3) has stated that the age of her daughter (PW-1) is about 15 years. She has admitted that she does not know the date of birth of her daughter (PW-1). 16. From the aforesaid testimony of PW-1, PW-2 and PW-3, it is clear that these witnesses do not know the exact date of birth of the prosecutrix (PW-1) and they are telling the age approximately. In such circumstances, the basis of recording the date of birth of prosecutrix (PW-1) as 15.02.1988 in the Dakhil Kharij register creates suspicion in absence of testimony of the author who recorded such date of birth of the prosecutrix in Dakhil Kharij register. 17. While dealing with the evidentary value of documents like Dakhil Kharij register, transfer certificate which contains the date of birth of a person, 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 9 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 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. 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 the lis, having regard to the provisions of Section 35 of the Evidence Act will have 10 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 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.” 18. It is apparent that Rohit Ram (PW-8) is not an author of entry of date of birth of the prosecutrix made in Ex.P-7C and the learned trial Court finds that the prosecutrix (PW-1) was a consenting party to the act of the accused/appellant and thus acquitted him from the offence under Section 376(1) of IPC. The father (PW-2) and mother (PW-3) of the Prosecutrix did not spell anything specific about the date of birth of their daughter and both have stated that they do not know the date of birth of their daughter but the learned Trial Court did not appreciate all these facts in its true perspective. Thus, in absence of examination of author of Dakhil Kharij register and in absence of any corroborative and substantive piece of evidence with regard to the date of birth of the prosecutrix and in view of judgment of Hon’ble 11 Apex Court in Alamelu (supra), it would be very difficult for this Court to arrive at finding that the Prosecutrix was minor at the time of incident. Thus, this Court set aside the finding of the learned trial Court holding the Prosecutrix to be minor. 19. In the result, the appeal is allowed. Conviction of the accused/appellant under Sections 363, 366 of the IPC and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charges by extending him benefit of doubt. 20. The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 437-A of Cr.P.C. (new Section 481 of BNSS). 21. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.11.13 15:05:07 +0530