1 2025:CGHC:20822 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 142 of 2016 1 - Devkumar S/o Prem Sagar Yadav Aged About 23 Years Caste Mahkul, R/o Village Ranai, Police Station Farsabahar, District Jashpur, Civil And Rev. District Jashpur, Civil And Rev. District Jashpur, Chhattisgarh., Chhattisgarh ... Appellant(s) versus 1 - The State Of Chhattisgarh Through Police Station Farsabahar, District Jashpur, Chhattisgarh., Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Rishikant Mahobia, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 06/05/2025 1. 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 2 dated 25.01.2016 passed in Special Case No. 24/2014 by which the learned Special Judge {Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act}, Jashpur (C.G.) has convicted and sentenced the appellant as under :- Conviction Sentence U/s 366 of IPC R.I. for 8 years and fine of Rs. 5000/-, in default of fine, additional R.I. for 5 months. U/s 376(1) of IPC R.I. for 10 years and fine of Rs. 10,000/-, in default of fine, additional R.I. for 10 months U/s 493 of IPC R.I. for 8 years and fine of Rs. 8000/-, in default of fine, additional R.I. for 8 months. 2. Case of the prosecution in brief is that 13.03.2013 at about 8:00 pm at Village Ranai, P.S. Farsabahar, the appellant abducted the minor prosecutrix from the lawful guardianship of her parents and has committed sexual intercourse against the will of the prosecutrix on the pretext of marriage and wrongfully confine her for more than 10 days. The learned trial court framed charges against the appellant under Sections 363, 366A, 376(2)(k)(n), 344, 493 of IPC and Section 4 of POCSO Act, and Section 3(2)(v) & 3(1)(xii) of SC & ST ( Prevention of Atrocities) Act. 3. 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 3 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. 4. Learned counsel appearing for the appellant submits that there was love affair between appellant and prosecutrix, she went alongwith appellant of her own will and no alarm was raised by her while she roamed with appellant from one place to another. Conduct of prosecutrix is seen in its entirety, it is clear that she had been a consenting party. 5. 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. 6. 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. 7. 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 4 Kharij Register (Ex.P-2/C), wherein date of birth of prosecutrix is mentioned as 06.05.1995. 8. PW-2/ Gandhurasai who is the teacher in the School of prosecutrix has admitted in para 4 of his cross-examination that he has not entered the date of birth of the prosecutrix in the Dakhil- Kharij Register (Ex. P-2/C). 9. D.W.-1/ Dr. R. Jeetpure who has done the ossification test of the prosecutrix gave his report (Ex. D-1) wherein he has stated that in his opinion the age of the prosecutrix is 20 years which can be 2 years plus or minus. 10. There is no any documentary evidence available on record that on what basis date of birth of prosecutrix is mentioned as 06.05.1995 and also no birth certificate issued by the Corporation or Panchayat has been produced regarding date of birth of prosecutrix. Even the doctor conducting ossification test of the prosecutrix has opined that the age of the prosecutrix is 20 years which can be 2 years plus or minus. 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, PW- 2 Teacher of Tribal Welfare Primary School, has stated in para 4 5 of his cross-examination that he has not entered the details at S. No. 183 (Ex. P-2/C). Thus, he is not the author of the Dakhil-Kharij Register. 11. 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 6 concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a 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. 12. 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 7 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 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.4 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 8 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 to the lis, having regard to the provisions of Section 35 of the Evidence Act will have 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." 13. This Court finds 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 9 by the prosecution by leading cogent and clinching evidence. 14. Now the question for consideration that arises before this Court is whether the appellant has kidnapped and raped the prosecutrix? 15. PW-4/ prosecutrix has deposed in her examination-in-chief that the incident happened on 16/03/2013. Accused Devkumar is a resident of her village, i.e., Ranai. On the incident date 16/03/2013 Ashtaprahari (puja) was going on, she had gone for a walk towards Kumharpara at 8.00 pm, then the accused Devkumar Yadav met her and forcibly raped her near the bridge at the same place of incident, the said bridge is on the Kokia river, and the accused Devkumar told her not to tell this incident at home, otherwise he will defame her in the society. After this incident, on 22/03/2013, she was going to Raigarh for computer examination and was waiting for the train at Kotba bus stand to go to Raigarh, then accused Devkumar came there and said that he is also going to Raigarh, and asked her to come with him, then she went with accused Devkumar. Accused Devkumar is her brother's friend, that is why she trusted him and went with him, then instead of taking her to Raigarh, the accused took her to Sajbahar and at the accused's elder father's house in village Sajbahar, the accused kept her for 4 days and forcibly raped her, then she asked the accused to drop her to Raigarh, then instead of taking her to Raigarh, the accused took her to Kotebira Shiv Mandir and forcibly filled vermilion in her head (mang). There 10 were Brahmin people who tried to convince both of them, but the accused did not agree, forcibly held her hand and filled her head with vermillion. After that the accused took her to Raigarh. In Raigarh, the accused kept her at his sister's house for three days, there also the accused forcibly raped her. Accused Devkumar Yadav called at his house and told that he has brought the prosecutrix with him and asked to break the the marriage that was already fixed by his parents, then his maternal uncles had gone to Raigarh and brought the accused and the prosecutrix to the village. However, in para 15 she has admitted that a meeting was held in the village on 01/05/2013, people from the entire village including Muneshwar Ram, Jaydhar, Bhadar, Maheshwari, Chandan were present in the meeting. In the said meeting she and accused told that they had a love affair with each other and they will live together. It is true that accused Devkumar's father Premsagar also came to this meeting, but left in the middle of the meeting. It is correct to say that Premsagar, father of accused Devkumar, did not want to keep her. It is also true that the villagers had given the responsibility of both of us to Jagmohan Yadav, uncle of accused Devkumar. In para 16 also she admitted that she and accused Devkumar were living as husband and wife for about 3 months in the house of Devkumar's maternal uncle, accused Jagmohan Yadav. At that time the maternal uncle of accused Devkumar had given them the house of Beete alias 11 Santosh on rent, there also they lived like husband and wife for 2- 3 months. Further, in para 22, she admitted that since the accused had left her without informing her, therefore she lodged the report against the accused. She again admitted that if the accused would not have left her alone, then she would not have made complaint against him. 16. PW-7/ Dr. Mamta Sai who medically examined the prosecutrix gave her report (Ex. P/12) wherein she has deposed that: External examination:- Her secondary sexual characteristics were fully developed and there were no external injuries on hher body. There were hypopunctated marks on the left side of the lower lip. Internal examination:- 1. Parveginam 2. White discharge Personal hygiene was poor. Two fingers were entering her vagina easily. The cervical part and lateral wall of the vagina were slightly red. There was no pain when touched. Opinion:- The prosecutrix had sexual intercourse. 17. Close scrutiny of evidence led by the prosecution would make it clear that the prosecutrix was a consenting party. She admitted in her cross-examination that she had a love affair with the accused and lived with him as husband and wife. She again admitted that she has lodged the complaint against the accused because he left her without informing her, otherwise she would not have filed a case against him. Dr. Mamta Sai (PW-7) deposed that no sign of external injuries were found on the body of the prosecutrix, the 12 prosecutrix had previous sexual intercourse. 18. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, I am of the opinion that the age of the prosecutrix is not verified and she was a consenting party. Therefore, in the above facts and circumstances of the case, offence under Sections 366, 376(1) and 493 of IPC would not be made out against the appellant. 19. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 25.01. 2016 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. 20. 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. 21. Records of the trial court be sent back along with a copy of this order forthwith for information and necessary compliance. SD/- (Arvind Kumar Verma) JUDGE Madhurima