1 2025:CGHC:58739 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 864 of 2022 1 - Bodhanlal Nagarchi S/o Dilip Nagarchi Aged About 19 Years R/o Village Bagdehi, P.S. Kurud, District Dhamtari (C.G.) ... Appellant versus 1 - State Of Chhattisgarh Through P.S. Gurur, District Balod (C.G.) (Wrongly Mentioned As P.S. Balod In The Ordersheet) ... Respondent For appellant : Mr. Prasoon Agrawal, Adv. For Respondent : Ms. Anuradha Jain, Panel Lawyer. (Hon’ble Shri Naresh Kumar Chandravanshi, J) JUDGMENT ON BOARD 3-12-2025 1. This criminal appeal under Section 374(2) of the Cr.P.C. has been preferred by the appellant/accused against the judgment of conviction and order of sentence dated 11-5-2022 passed by the Special Judge (Protection of Children from Sexual Offence Act, 2012), Balod (CG) (henceforth referred to as ‘Special Judge’) in Special Sessions Case (POCSO) No. 18/2020, whereby the learned Special Judge convicted and sentenced him in the following manner:- Conviction under Section Jail Sentence Fine Sentence Default stipulation 363, IPC RI for 2 years Rs. 2,000/- Imprisonment for 2 months Digitally signed by AVANISH KUMAR PATHAK Date: 2025.12.10 11:15:14 +0530 2 2. The case of the prosecution, in brief, is that, the minor victim left her house on 19-7-2019 without informing her family members. On being searched, her family members did not find her, therefore, father of the victim lodged FIR (Ex. P-9) in police station Gurur, Distt. Balod for the offence under Section 363 of the IPC against unknown person. Subsequently, the victim was recovered vide Recovery memo Ex. P-1 dated 26-9-2019 from the possession of Vishnuram Sahu (P.W. 2). Statement of the victim under Section 164 of the Cr.P.C. was got recorded from concerned Magistrate. Her police statement was also recorded, in which, she revealed that, she had love affair with the appellant and they also used to talk over mobile phone. On 19-7-2019, appellant called her and asked her to come at Dhamtari, hence she went to Dhamtari from her house at 10.00 am. From Dhamtari, appellant took her to Raipur by a bus and thereafter took her to Bilaspur by train where he kept her in house of his friend where he made physical relation with her. After two days, the appellant took her to Korba where they stayed in the house of sister of the appellant. After a week, he took her to village Bagdai, Distt. Dhamtari, he kept her in the house of his maternal uncle where appellant made physical relation with her. On 31-7-2019, her parents came to village Bagdai and took her to their village. Thus, the appellant abducted her and raped her. Medical evidence of the victim was got conducted from Dr. Arti Dhruw (P.W. 7), in which, she did not opine about commission of rape with the victim, rather she only opined that her hymen was ruptured. Statements of witnesses were recorded. Spot map was prepared. 3 Dakhil Kharij register (Article A(C) of Girla Higher Secondary School, Bohara pertaining to the victim was seized vide Ex. P-14. Original mark sheet of Class 10th (Article A) of the victim was seized vide seizure memo Ex. P-4 and after retaining photocopy of the same, the original was returned to the victim. After usual investigation, charge sheet under Sections 363, 376 of the IPC and Sections 4, 5(l), 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 (henceforth, referred to as ‘POCSO Act’) was filed. 3. Learned Special Judge framed charges under Sections 363, 376(2)(n) of the IPC and Section 5(l)/6 of the POCSO Act against the appellant, who abjured his guilt and claimed trial. 4. In order to bring home the guilt of the appellant/accused, the prosecution has examined following witnesses and exhibited following documents:- WITNESSES PW 1 Victim P.W.5 Suraj Sahu PW 2 Father of victim P.W. 6 Jhanak Sudhakar PW 3 Tulsiram Yadav P.W. 7 Dr. Arti Dhruw P.W. 4 Vishwanath Sahu P.W. 8 Yogendra Kumar Verma P.W. 5 EXHIBITS 1. Ex. P-1 Recovery Panchnama 12 Ex. P-12 Police statement of Vishnu Ram Sahu 2. Ex. P-2 Notice u/S. 91, Cr.P.C. 13 Ex. P-13 Application to Principal of school 3. Ex. P-3 Notice u/S. 91, Cr.P.C. 14. Ex. P-14 Seizure memo 4. Ex. P-4 Seizure memo 15 Ex. P-15 Police statement of Vishwanath Sahu 4 5. Ex. P-5 Spot map 16 Ex. P-16 Supurdnama 6. Ex. P-6 Submission of Spot map and Panchnama 17. Ex. P-17 Summons u/S. 160, Cr.P.C. 7. Ex. P-7 Statement u/s. 164, Cr.P.C. 18 Ex. P-18 MLC report of victim 8. Ex. P-8 Police statement of Victim 19. Ex. P-19 Summon u/S. 160, Cr.P.C. 9. Ex. P-9 FIR 20 Ex. P-20 Letter to Bal Kalyan Samiti 10. Ex. P-10. Police spot map 21 Ex. P-21 Statement of victim by Balak Kalyan Samiti 11. Ex. P-11 Consent letter 22. Article A Mark sheet 23. Article AC Dakhil Kharij register Statement of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he denied all the incriminating circumstances appearing against him claiming innocence and false implication. No witnesses have been examined by the appellant-accused in his defence. 5. The Special Court upon appreciation of oral and documentary evidence available on record, vide its impugned judgment, acquitted the appellant/accused of the offence under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act as the victim does not support the charge of rape, however convicted and sentenced him, as mentioned 5 in the opening paragraph of this judgment, against which, this appeal has been filed by him. 6. Learned counsel for the appellant submits that, learned Special Court has held the victim minor only on the basis of mark sheet of Class 10th (Article A) of the victim and Dakhil Kharij register (Article A-C) of Girls Higher Secondary School, Bohara, but neither the Dakhil Kharij register of the school of the victim where she first attended has been seized and proved nor it has been proved that, on the basis of which document, alleged date of birth ‘10-11-2002’ has been recorded in school record. Though Article A is said to be photocopy of mark sheet of victim, which was seized vide seizure memo Ex. P-4, but it has not been proved by comparing it from its original, therefore, the date of birth mentioned in the mark sheet Article A is not reliable. Hence, aforesaid two documents cannot be relied upon pertaining to date of birth of the victim. He further submits that the victim (P.W. 1) has deposed that she is telling her date of birth on the basis of her mark sheet of Class 10th and her father (P.W. 2) has not deposed about the exact date of birth of the prosecutrix. Despite that, the Special Court has held the victim as minor. He further submits that the victim herself joined company of the appellant and resided with him for about 12 days on her own free will. Thereafter she was taken by her parents on 31-7-2019 from the house of maternal uncle of appellant. Thus, since the victim herself had gone with the appellant with her own free will, therefore, conviction of appellant/accused under Section 363 of the IPC is not sustainable. Therefore, he prays that the appeal be allowed and the appellant be acquitted of the aforesaid offence. 6 7. Learned Panel Lawyer, appearing for the respondent/State supports the impugned judgment. 8. I have heard learned counsel for the parties, considered their rival submissions made and also went through the record of the Special Court with utmost circumspection. 9. As per the case of the prosecution, the victim (P.W. 1) was minor on the date of incident. The victim (P.W. 1) has deposed that she has told her date of birth on the basis of her mark sheet of Class 10th. The victim herself has admitted in her cross-examination para 10 that in Adhar card, her year of birth is mentioned as 2001, but in her mark sheet of Class 10th, her date of birth is mentioned 10-11-2002. Her father (P.W. 2) has not stated the exact date of birth of victim. As per school record i.e. Dakhil Kharij register (Article A-C) of Higher Secondary School of victim and her Class 10th mark sheet (photocopy Article A), her date of birth is mentioned as 10-11-2002, but from aforesaid admission of victim herself, her year of birth becomes suspicious as she has admitted in para 10 of her deposition that her birth year is 2001. Therefore, it cannot be held proved beyond reasonable doubt that, ‘10-11-2002’ is her actual date of birth. 10. To prove age of the victim, the prosecution has relied on the mark sheet (Article A) of Class 10th of the Victim and the Dakhil Kharij register [Article A(C)] of the Girls Higher Secondary School, Bohara. It is worthy to mention her that photocopy of mark sheet of Class 10th of the victim has been exhibited as Article A, but the same has not been proved by comparing the same from its original, which was primary 7 evidence. Section 61 of the Evidence Act provides that, contents of a document can be proved by either primary evidence (the original document) or secondary evidence (a copy or other proof). 11. It is settled law that a fact in issue can be proved by producing primary evidence. Hon’ble Supreme Court in the case of H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209 : 2011 SCC OnLine SC 437, has held in para 12 as under:- “12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. 8 Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907] .) 12. Further, the Hon’ble Supreme Court in the case of Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, [(2024) 6 SCC 130] has held in para 36 as under :- “The said sale deed dated 17-9-1994 in original has not been produced in evidence. It was only the photocopy of the same which was brought on record. The photocopy of a document is inadmissible in evidence. ……….” 13. Reverting to the facts of the case in hand, though, on the basis of the mark sheet (Article A) of Class 10th issued by the Chhattisgarh Board of Secondary Education, Raipur, age of student can be determined as provided in Section 94 of the Juvenile Justice (Protection of Children) Act, but, if we consider the facts of instant case in the light of aforecited case laws, then it is found that, ‘Article A’ is photocopy of mark sheet of Class 10th of the victim, but the same has not been proved by comparing it from its original. Therefore it cannot be relied upon. 14. It is also to be mentioned here that the Dakhil Kharij register (Article A(C) pertains to the school where the victim took admission in Class 9th. Neither Dakhil Kharij register of the school where she first attended has been proved nor it has been proved that, aforesaid date of birth mentioned in school record has been got recorded on the basis of which document. 15. In view of above discussion, it is found that the finding recorded by learned Special Court that the victim was minor on the date of incident is perverse to the evidence available on record and is not sustainable. 9 16. The victim (P.W. 1) has stated in her deposition that, she used to talk to the appellant over mobile phone, therefore, she fell in love with her. Thus, she joined company of the appellant with her own consent and free will, as neither she has stated in deposition that the appellant had taken her forcefully nor she raised any alarm to protect herself while residing and going from one place to another with him. She has admitted in para 11 that, she joined the company of the appellant/accused with her own free will. Therefore, necessary ingredient to convict the appellant under Section 363 of the IPC is not found to be proved. Hence, conviction and sentence of appellant under Section 363 of the IPC is not sustainable. 17. In view of above discussion, no cogent evidence has been adduced by the prosecution to hold the appellant guilty under Section 363 of the IPC, but learned Special Court, without any lawful evidence, has convicted and sentenced him for offence under Section 363 of the IPC, therefore, the impugned judgment of conviction and order of sentence is not sustainable. 18. In the result, the appeal is allowed. Conviction and sentence imposed on the appellant under Section 363 of the IPC are set aside. He is acquitted of the said charge. The appellant is reported to be on bail. He needs not surrender. The bail bonds furnished by the appellant 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. 10 19. Let a certified copy of this judgment along with original record be transmitted to the Special Court concerned forthwith. 20. The Criminal Appeal is allowed. Sd/- (Naresh Kumar Chandravanshi) Judge pathak