1 2025:CGHC:20474 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 9 of 2011 Rameshwar Prasad, S/o Amarnath Rajwade, aged about 20 years, R/o Gram Girjapur, P.S. Patna, District Korea (C.G.) --- Appellant versus State of Chhattisgarh, through District Magistrate, District Koria (C.G.) --- Respondent/State ACQA No. 128 of 2012 State of Chhattisgarh Through P.S. Patna, Distt.-Korea, C.G., Chhattisgarh ---Appellant/State Versus Rameshwar Prasad S/o Amarnath Rajwade Aged About 20 Years R/o Village Girjapur, P.S. Patna, Distt.-Koriya, C.G., Chhattisgarh ... Respondent For Appellant in CRA No.9/2011 and for Respondent in ACQA No.128/2012 : Mr. Sangeet Kumar Kushwaha, Advocate For State : Mr. Vivek Mishra, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 05.05.2025 1. Since both the above appeals have arisen out impugned Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.05.08 17:01:25 +0530 2 judgment dated 31.12.2010 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, 1989, Koria Baikunthpur, Chhattisgarh in Sessions Trial No.08/2009, they have been clubbed together, heard together and are being disposed of by this common judgment.:- Conviction Sentence & Fine U/s 363 of the IPC R.I. for 3 years and fine of Rs.500/- in default thereof, 3 months’ SI U/s 366 of the IPC R.I. for 3 years and fine of Rs.500/- in default thereof, 3 months’ SI U/s 376 of the IPC R.I. for 3 years and fine of Rs.500/- in default thereof, 3 months’ SI The sentences are directed to run concurrently. 2. As per prosecution story, on 09.01.2009, father of the victim lodged a report in the Police Station Patna to the effect that on 05.01.2009, his daughter went to see Saila dance in the village after coming from school. When his daughter did not return home till late night, he inquired about her in the locality, but she was nowhere to be found. On 6-1-2009 & 7-01-2009, he inquired about the victim among his relatives, but still she was not found. On 06.01.2009, he called all the children who went to study with the victim, but Rameshwar (accused) did not come. Then he asked the accused's father about the accused, and his father told that the accused has gone to Surajpur. On 08.01.2009, he lodged a missing report of the victim in Patna Police Station. On 09.01.2009, Mahendra Prasad Rajwada of village Girjapur received a call on his mobile at 6.00 am from village Amhar that the victim and the accused are at the house of victim’s maternal grandparents 3 in village Amhar. Thereafter they went to village Amhar, where the victim was found at her in-laws' place. On enquiring by father of the victim, she told him that on 05.01.2009, when she went to the accused/appellant, who studies with her in school, to ask for a book, the accused lured her with the promise of marriage and forcibly kidnapped her and took her to his relative's house in village Aani and raped her. The complainant has stated that the age of the victim is 16 years, whom the accused knowingly lured by promising marriage and kidnapped her and took her to his house in village Girjapur and to his relative's village Aani and raped her forcefully. On the basis of the above, the Police Station Patna registered a case against the accused/appellant Rameshwar Prasad under Sections 363, 366, 376 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. Thereafter medical examination of the victim was conducted. The police seized the slide of the secretion of the genitals of the victim, caste certificate, undergarments worn by her at the time of the incident, the admission register of the school. The police sent the seized clothes and slides to the Forensic Science Laboratory, Raipur. The accused was arrested on 28.01.2009. After completing the investigation, a charge sheet was filed against the accused. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses, exhibited 19 documents and one article. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4 4. After hearing the parties, the trial Court acquitted the accused Rameshwar Prasad for offence punishable under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. However, convicted and sentenced him for offence as mentioned in opening paragraph of this judgment. Hence, these appeals. CRA NO.09/2011 5. Learned counsel for the appellant submits that the date of birth of victim (PW-1) is not proved. No conclusive evidence regarding her age has been produced by the prosecution. Thus, as date of birth of the victim (PW-1) was not proved, the prosecution has failed to prove that the victim was minor at the time of the incident. He further submits that the victim was a consenting party though prosecution has failed to prove its case beyond doubt, the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence. 6. On the other hand, the learned counsel for the State submits that the conclusion given by the trial Court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. Heard learned counsel for the parties and perused the record with utmost circumspection. Determination the age of the Victim 5 8. The victim (PW-1) has stated her date of birth is 12/06/1993. Regarding this date, the prosecution seized and produced the victim's school admission register, Exhibit P-6/C. While certifying this, S.P. Singh (PW-3) has stated that he is the Principal of Government Higher Secondary School, Ranai, the police had seized the admission register, from him, which is maintained since 16/06/2005. Serial Nos. 1214 mention the admission of the victim, according to which she was admitted in Class IX on 18/06/2007 and due to her continuous absence, her name was dismissed on 30/01/2009, i.e. after the incident. According to this register, the date of birth of the victim is recorded as 12/06/1993, which on calculation shows that the age of the victim was 15-16 years on the date of incident-05/01/2009. Principal S.P. Singh (PW-3) has clarified in cross-examination that the said entry is not in his own handwriting. There is no basis in that register to show that on what basis the date of birth of the victim has been written. Thus, it is clear that the date of birth recorded in the school admission register (Exhibit P-6/C) has been done at the time of admission of the victim in class-IX, i.e. it is not the register of the primary school and the said entry is also not in the handwriting of Principal S.P. Singh. Principal S.P. Singh has also been unable to tell 6 on what basis the date of birth of the victim has been written. 9. The Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of 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 or 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 :- “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 7 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 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.” 10. Hon’ble the Apex Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has 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 8 who gave the date of birth is examined.” 11. Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held that:- “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 to 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.” 12. How, dakhil-kharij register is treated to be relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another (2008) 13 SCC 133, wherein it has been held as under:- “22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not 9 conclusive and has to be considered along with other cogent evidence. 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 v. Anand Purohit (1997) 4 SCC 24).” 13. The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:- “26. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. 34. On consideration of the totality of the 10 facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.” 14.In the light of the above cited judgments, it would be appropriate to review the evidence of the case. Naturally, the date of birth of any person is best known to his/her parents. In this case, the victim (PW-1) has stated that her date of birth is based on the information provided by her father. Father (PW-2) has stated age of the victim as 14 years in his Court statement. If I look at the complete statement of father (PW-2) of the victim, it appears that he does not remember the date of birth as well as the year of birth of the victim. He stated that his marriage took place in the year 1994, whereas the birth of his daughter has been recorded in the school register as 1993 that means he is stated his daughter's birth before marriage. 15. This makes it clear that father (PW-2) does not have the correct information about the date and year of birth of the victim. Father (PW-2) has also stated in cross-examination that his daughter victim (PW-1) was born in 1995 which is contradictory to the school admission register (Exhibit P- 11 6/C). Father (PW-2) has also stated that number of children in his Patrapara school was not reaching 32 and there was a problem in opening the school, then on the advice of the teacher he got the victim admitted in the school while the age of the victim was only 03 years. Then after consultation with the villagers, he increased the age of the victim from 03 years and then the teacher Kanhaiya Lal in the school entered the entry of her admission. But the statement of teacher Kanhaiya Lal has not been recorded and it is clear from the statement of the father (PW-2) that he does not know the date of birth of the victim (PW-1) as well as the year. 16. In view of aforesaid discussion and in light of above cited judgments, this Court finds that the prosecution has failed to prove the fact that age of the victim was less than 18 years at the time of incident. Was the victim a consenting party? 17. In the present case, the incident is said to have taken place between 05/01/2009 and 09/01/2009. It is clear from the statement of the victim (PW-1) that the appellant and his house are nearby. The victim (PW-1) was recovered from her maternal grandparents' house in village Amhar, police station Sonhat on 09/01/2009. The victim (PW-1) has certainly stated while explaining the circumstances of reaching there and supporting the prosecution case that the appellant took her to his house on the pretext of giving 12 her a book and forcibly kept her there and raped her by threatening her. Thereafter, he took her to village Aani and kept her there for a day and then left her at her maternal grandparents' house, when she was recovered by the police. 18. Dr. Swati Bansaria (PW-5) has stated that she conducted the medical examination of the victim on 10/01/2009 and submitted a report (Exhibit P-8) according to which there is no clear opinion that the victim (PW-1) was raped forcefully and no injury has been found on her. No chemical test report of the slide prepared by the doctor has also been produced. 19. The victim (PW-1) has admitted in cross-examination that there is no mention in her police statement (Exhibit D- 1) of the threat given by the appellant which she has stated in the Court. Similarly, in the Court statement she has stated that she had gone to ask Parvati for a book but this fact is also not mentioned in her police statement (Exhibit D-1). In paragraph 13, she has admitted that she and the appellant used to have a little conversation while going to and coming from school by bicycle. She has also clarified that when the appellant took her to his house and kept her there for two days, a total of 7-8 family members including the appellant's brother-in-law, parents, siblings etc. live in that house. She has also admitted that there is a shed, 03 rooms, 01 kitchen in that house and she had seen all the family members. She has also admitted that she was staying in the courtyard of that house and if she called out, her family members would have definitely heard her. She has also admitted that the houses of Lakhan, Parasnath, Rama, Harishankar etc. are near the appellant's house and 13 even if she shouted or talked loudly from that house, the people around would have heard. But it is clear that the victim has neither protested in any way in the total two days at the appellant's house nor has she made any complaint to the appellant's family. Rather, she has stated that she went to another village with the appellant from that house and said that when they left for Aani, they came to village Aani from Girjapur via Patna and Baikunthpur Petrol Pump. The family members of the house where she stayed in village Aani were also between 6-7 in number. There also, she did not complain to those family members, rather she also had lunch there and the food was served to her by the women of the house. Thus, she did not complain of any kind in village Aani either. She has also admitted that the appellant dropped her to her maternal grandparents' house from village Aani and he himself dropped her to her maternal grandparents' house on the request of the victim. Thus, from the entire statement of the victim (PW-1), it becomes clear that she was an consenting party with the appellant. 20. Since, the victim has been found to be a consenting party and the prosecution has failed to prove that the victim was below 18 years of age at the time of the incident. In such a situation, the benefit of doubt goes to the appellant. 21. Consequently, the appeal is allowed and the conviction and sentence in question is set aside and the appellant is acquitted of the charges leveled against him, giving him the benefit of doubt. ACQA No.128/2012 14 22. Learned State counsel would submit that the trial Court is absolutely unjustified in acquitting the respondent/accused for offence under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. herein by considering irrelevant evidence and recording findings, which are perverse and unreasonable and, as such, the appeal against such acquittal of accused/respondent may be allowed and respondent be convicted accordingly. 23. learned counsel appearing for the respondent/ accused would supports the acquittal order passed by the trial Court and submits that the trial Court has rightly acquitted the respondent/accused for offence under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989, as there is no evidence against him to implicate in such offence, hence, the acquittal appeal filed by the State/appellant is liable to be dismissed. 24. Heard learned Counsel appearing for the parties and perused the material available on record. 25. As regards the acquittal of the respondent/accused for offence under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act is concerned, the trial Court has discussed in paragraph 27 & 28 that Naib Tehsildar Amit Gupta (PW- 4) registered Case No. 722/B-121/08 for issuing a caste certificate in favor of the victim, based on an application submitted by her father (PW-2). The application was supported by an affidavit. The Naib Tehsildar issued a provisional caste certificate under Article A, certifying that the victim belongs to the Oraon community, which is recognized as a Scheduled Tribe. There is no evidence to show that the accused committed the offense due to the victim’s status as a member of a Scheduled Tribe. The offense was committed because the victim is a female. 15 Therefore, the offense under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is not proven beyond reasonable doubt against the accused. 26. The appellant is acquitted for offence under Sections 363, 366 & 376 of IPC, therefore, no offence under Section 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out against the Appellant. In such a situation, there is no case for interference in the conclusion of acquittal. 27. Accordingly, the acquittal appeal filed by the State is hereby dismissed. 28. It is reported that the Appellant is on bail. He need not to surrender in this case. However, his bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 29. In the result :- (i) Criminal Appeal No.9 of 2011 is allowed. (ii) Acquittal Appeal No.128 of 2011 is dismissed. 30. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham