1 2025:CGHC:6813-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 245 of 2019 Manglu Ram Chakradhari, S/o Kanshi Ram, aged about 40 years, R/o Village Siwar, Thana Berla and District Bemetara Chhattisgarh ... Appellant versus State of Chhattisgarh, through Station House Officer, Police Station Mandir Hasoud, District Raipur, Chhattisgarh ... Respondent For Appellant : Mr. Sudhir Ku. Bajpai, Advocate For Respondent/State : Mr. Sharad Mishra, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (06.02.2025) Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.02.13 15:34:18 +0530 2 Sanjay Kumar Jaiswal, J. 1. Invoking criminal jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 27.08.2018 passed by the learned Special Judge, Raipur, District Raipur (C.G.) SC/ST (Prevention of atrocities) Act 1989, in Special Case under the SCST Act No.48/2017, by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 363 of the IPC RI for 2 years and to pay fine of 500/-; in default of ₹ payment of fine, additional RI for 1 month U/s 366 of the IPC RI for 3 years and to pay fine of 1000/-; in default ₹ of payment of fine, additional RI for 2 months U/s 376 (2)(i)(n) of the IPC as also U/s. 6 of the POCSO Act, 2012 [However, in light of Section 42 of the POCSO Act, sentenced/punished only U/s 376 (2)(i)(n) of the IPC] RI for 10 years and to pay fine of 1000/-; in default ₹ of payment of fine, additional RI for 2 months U/s 3 (2)(V) of the SC and Imprisonment for life and to 3 ST (Prevention of Atrocities) Act, 1989 pay fine of 1000/-; in ₹ default of payment of fine, additional RI for 2 months All the sentences are directed to run concurrently 2. The prosecution case in brief is that the victim (PW-2) was 15 years old at the time of the incident. On 08.06.2016 at about 11.00 a.m. the victim left her house with a small water container to answer the nature’s call outside, but she did not return home thereafter. The victim’s father (PW-1) searched for the victim, but she could not be traced. On 09.06.2016 the victim's father filed a report regarding missing of the victim in police station Mandirhasaud. The police registered a First Information Report on the report of the victim's father. The victim is a member of the Scheduled Caste. On 08.06.2016, when the victim was going towards the field to answer the nature’s call, at 11.00 a.m., the accused Mangalu Chakdhari met the victim and lured her saying that he will marry with her and keep her as his wife, and thereafter he eloped with her to Lucknow (Uttar Pradesh). The appellant kept the victim in a house under construction at Lucknow. The accused kept having physical relations with her continuously due to which she became pregnant. On 12.12.2016, the victim was recovered by the police in Gomti Nagar, Lucknow. Thereafter, her petticoat was seized. Consent was taken from mother of the 4 victim for medical examination of the private part of the victim. The medical examination of the victim was done in the Community Health Center, Arang, in which it was diagnosed that she was 9 months’ pregnant. The petticoat of the victim was examined by the doctor. The undergarments of the accused were seized. The accused and his underwear were examined by the doctor. The caste certificate of the victim was seized from the father of the victim. The admission register of the victim was seized from the Government Primary School, Gujra. Thereafter, a site map of the incident was prepared. Statements of witnesses were recorded. The seized slides, petticoat, underwear were chemically examined in which human sperm and semen stains were found in the petticoat of the victim. In January, 2017, the victim gave birth to a girl. On completion of whole investigation, charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 24 documents. Statement 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. After hearing both the parties, the trial Court passed the impugned judgment of conviction and order of sentence. 5 5. Learned counsel for the appellant submits that the victim (PW-2) was a consenting party who willingly lived with the appellant as his wife for a long time and a child has born out of their relationships as husband and wife. The prosecution has failed to prove through valid evidence that the victim was a minor and below 18 years of age at the time of the alleged incident. The date of birth of the victim could not be proved. It has not been proved as to on what basis the date of birth was recorded in her school's Dakhil Kharij register. The teacher who made the entry in the Dakhil Kharij register has not been examined. The victim's father has also been unable to tell the date of birth of the victim. Thus, it has not been proved that the victim was below 18 years of age at the time of the incident. In such a situation, the offence under Sections 363, 366, 376 (2)(i)(n) of the Indian Penal Code cannot be said to be proved, thereby the offence under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is also not proved at all. Therefore, the appeal may be allowed and the impugned judgment may be set aside and the accused may be acquitted. 6. On the other hand, learned counsel for the State submits that the finding recorded by the Trial Court regarding conviction and sentence of the appellant is based on 6 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. We have heard learned counsel appearing for the parties and perused the record with utmost circumspection. Consenting Party 8. The victim (PW-2) herself has stated in her Court statement that on 08 June 2016, she left her house to answer the nature’s call with a small water container. Thereafter, she went to the petrol pump situated beside the road by taking lift. From there, came to Raipur by bus where she met the appellant. She went with him to Lucknow (U.P.), where the appellant used to live in the house of his uncle Dauram Pade. She was in love with the appellant. She became pregnant with the relationship that she had with the appellant and gave birth to a daughter on 01/01/2017. Then the Lucknow police brought her to Mandir Hasaud police station and her medical examination was done. In the cross-examination also, she has admitted that she had gone along with the appellant of her own free will and they got married in the Shiv temple at Lucknow. Since then, the appellant had physical relationship with her, to which she 7 had consented. They lived as husband and wife and even now they want to live as husband and wife. She does not want any action against the appellant and wants to live happily with him, for which her parents are also agreed. Thus, it is clear from the statement of the victim (PW-2) that she was a consenting party. 9. The victim's father (PW-1) has also stated in his Court statement that his daughter victim (PW-2) had left the house and did not return. She became pregnant by the appellant. On the question of the prosecution, he did not clarified the fact that the victim had told him that she was lured and taken away by the appellant. He has also stated that he has accepted the appellant as his son-in-law. In cross-examination, he stated that the victim had gone along with the appellant of her own free will and she did not complain to him about the appellant, rather both of them were living happily. Thus, it is clear from the statement of the victim (PW-2) and her father (PW-1) that the victim was a consenting party. 10. The offence for which the appellant has been convicted will be proved if the prosecution proves beyond doubt that the age of the victim was below 18 years on the date of the incident i.e. 08/06/2016 and she was a minor. Since the 8 victim has been found to be a consenting party, in such a situation, the burden of proving the said offence is on the prosecution that the prosecutrix was below 18 years on 08/06/2016. Age Determination 11. The victim (PW-2) herself has stated in statement that her date of birth is 06/06/2001. It is a natural thing that any child gets to know her/his date of birth from the parents. The entry of date of birth in any government or non-government document is also based on the information given by the child's parents. In this case, the victim (PW-2) herself has stated her date of birth as 06/06/2001, but she has not clarified from whom she got to know about her date of birth. To prove her date of birth and, the Dakhil Kharij register of the Government Primary School Gujra has been seized vide Exhibit P-13 as per seizure memo (Exhibit P- 11). Along with this a copy of admission register (Exhibit P- 15C) in the form of affidavit, the date of birth of the victim, has also been produced and to authenticate the said document, Santosh Chandrakar (PW-5), a teacher posted in Government Primary School Gujra, has been examined. He has clearly admitted in his cross-examination that at the time when the victim (PW-2) was admitted in the school, he 9 was not posted there, meaning thereby the entry in Exhibit P-13 is not an entry in his own handwriting. 12. The Supreme Court in the matter of P. Yuvaprakash vs. State Rep. by Inspector of Police, AIR 2023 Supreme Court 3525 has held in paragraphs 14 & 19 as under:- 14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 19. It is clear from the above narrative that none of the documents produced during the trial answered the 10 description of “the date of birth certificate from the school” or “the matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim’s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW- 9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating “that the age of the said girl would be more than 18 years and less than 20 years”. In the cross- examination, she admitted that M’s age could be taken as 19 years. However, the High Court rejected this evidence, saying that “when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor”. This finding is, in this court’s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim’s bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9. 13. 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 11 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 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 12 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.” 14. Hon’ble Supreme 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 who gave the date of birth is examined.” 15. 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 13 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 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).” 16. 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 14 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.” 17. If we consider the evidence produced in the light of the above judgments, then the entry in the Dakhil Kharij register (Exhibit P-13) is not in the handwriting of the teacher, Santosh Chandrakar (PW-5). Teacher Santosh Chandrakar has admitted in cross-examination that in Exhibit P-13, there is no reference or mention of any other birth certificate or Kotwari register in respect of the victim. He has stated that (Exhibit P-15C) is attached with the Dakhil Kharij register in the shape of affidavit regarding the date of birth of the victim. But the document (Exhibit P- 15C), is not in the form of an affidavit. In this document, there is mention of the declaration of Mangaldas Sonwani as the father, but it has not been certified that it is signed by Mangaldas Sonwani. Teacher Santosh Chandrakar (PW- 5) has admitted in his cross-examination that those children who do not have birth certificate or Kotwari register, their date of birth is recorded as per estimation given by their parents. 15 18. Thus, looking to the entry made in Exhibit P-13 mentioned by teacher Santosh Chandrakar (PW-5) which is said to have been recorded by the father of the victim (PW- 1), it is found that neither is he able to tell the date of birth of the victim nor does he remember the date of the incident. He has certainly said that at the time of the incident the victim was 15 years and 03 days old, but he has been unable to tell the date of birth of the victim or the date of the incident. In such a situation, it can not be assumed from his statement that the age of the victim stated as 15 years and 03 days at the time of the incident is a matter of his own knowledge. In his cross-examination, he has stated that at the time of her admission in the school, he had given the victim's birth certificate to the school and according to which her date of birth has been written. But in the Dakhil Kharij register (Exhibit P-13) and the admission register (Exhibit P-15C) certified by teacher Santosh Chandrakar (PW-5), there is no reference or mention of any such birth certificate as stated by victim’s father (PW-1). 19. In the light of the above mentioned judgments, we find that in the case at hand, the statement of the teacher who made the entry in the school admission register has not been recorded. It has not been proved on the basis of which 16 document, the date of birth of the victim was recorded. The father (PW-1) himself has been unable to tell the date of birth of the victim or the date of the incident. In these circumstances, this Court finds that the prosecution has failed to prove beyond doubt that the date of birth of the victim was 06/06/2001 and at the time of the incident, she was less than 18 years of age. In this situation, when the victim was an consenting party, then the offence under Sections 363, 366, 376 (2)(i)(n) of the Indian Penal Code is not proved. Since the said offences are not proved, the provision of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is also not proved and mere mention by the prosecution witnesses that the appellant knew that the victim belongs to a Scheduled Caste is not sufficient to convict him for the said offence. In such a situation, the impugned judgment is not sustainable. 20. In view of the aforesaid discussion and in light of the above referred judgments, the appeal is allowed and the impugned judgment is hereby set aside. The appellant is acquitted of the said offences. It is reported that the Appellant is in jail. He shall be set at liberty forthwith, unless he is required to be detained in connection with any other offence. 17 21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court and a copy of this judgment be also supplied to the concerned Superintendent of Jail forthwith, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham