1 2025:CGHC:54516 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 838 of 2023 Rampreet Ram S/o Ram Nandan Ram Aged About 25 Years R/o Village- Ghaghara, Dudhaniyapara, P.S.- Pasta, District- Balrampur-Ramanujganj, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, P.S.- Pasta, District- Balrampur-Ramanujganj, Chhattisgarh ... Respondent For Appellant : Mr. AN Pandey, Advocate For Respondent/State : Ms. Prabha Sharma, Panel Lawyer (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment On Board 07.11.2025 1. This criminal appeal has been preferred under Section 374(2) of the CrPC against judgment of conviction and order of sentence dated 15.3.2023 passed by Additional Sessions Judge, Fast Track Special Court (POCSO Act), Ramanujganj Distt. Balrampur-Ramanujganj (CG) in Special Sessions Trial (POCSO) Case No.67/2020, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- Sl. No. Conviction under Section Jail Sentence Fine Sentence Default stipulation 01. 363 IPC RI for 05 years Rs.500/- Imprisonment for 01 month 02. 366 IPC RI for 05 years Rs.500/- Imprisonment for 01 month BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.11.14 11:02:53 +0530 2 03 323 IPC Imprisonment for 06 months -- -- 04. 4 POCSO Act RI for 10 years Rs.5,000/- Imprisonment for 02 months 05. 376(1) IPC Since the appellant has been sentenced for alike offence under the POCSO Act, therefore, in view of Section 42 of the POCSO Act, he has not been sentenced separately in this section. 2. The prosecution story in brief is that, written complaint (Ex-P/9) was filed by father of the victim in Police Station Pasta, Distt. Balrampur- Ramanujganj alleging therein that in the night of 28.5.2020, his minor daughter, aged about 17 years, had gone to attend the marriage ceremony of the appellant in his house, from where the appellant abducted the minor victim at about 2.30 am and took her to grass land near his house and forcefully raped her. At that time, elder brother of the victim (PW-8) and her uncle reached there, on seeing them he ran away from there and when brother of the victim caught him, the appellant assaulted him. Based on the above facts, FIR (Ex-P/10) was lodged in Police Station Pasta against the appellant for the offence under Sections 363, 366, 376, 323 IPC and Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’). During the course of investigation, statement of the victim under Section 164 CrPC was got recorded from concerned Judicial Magistrate First Class, medical examination of the victim was conducted by Dr. Vinika Bhagat (PW-3), in which vide MLC report Ex-P/2, she found abrasion on the legs of the victim and opined that physical relation has been made with her within 17 hours. She prepared two vaginal slides and handed over the same to the concerned police constable for chemical examination. Medical examination of the appellant was also conducted by Dr. Umesh Yadav (PW-4), in which he opined positive vide MLC report Ex-P/4. Police statement of the witnesses were also recorded. Dakhil Kharij Register (Ex- 3 P/7C) pertaining to the date of birth of the victim was seized vide Ex-P/6, spot maps vide Ex-P/8 & Ex-P/12 were prepared by Patwari and the police respectively. A piece of cloth and one bermuda of the appellant were seized from the place of incident vide Ex-P/15. One under wear of the appellant was seized from him vide Ex-P/16, vaginal slides of the victim, pubic hair and her underwear were seized vide Ex-P/17. Underwear and piece of cloth seized from the spot was got identified vide Ex-P/20. FSL report of the seized articles, i.e. two vaginal slides of the victim, her undergarment, her pubic hair and undergarment of the appellant, were obtained, in which, semen and human spermatozoa were reported to be found in both vaginal slides and undergarment of the victim, but in pubic hair of the victim and undergarment of the appellant, no semen and human spermatozoa were reported to be found. 3. After completion of investigation, charge sheet under Section 173 CrPC was filed for the offences under Sections 363, 366, 376 and 323 IPC and Sections 4/6 of the POCSO Act. The learned Special Court framed charges for the offence under Sections 363, 366 IPC and Section 4 of the POCSO Act, alternatively under Section 376(1) of the IPC and Section 323 of the IPC against the appellant and explained to him, who denied the charges and pleaded innocence seeking trial. 4. In order to bring home the guilt of the appellant, the prosecution has examined as many as 08 witnesses and exhibited 20 documents. Statement of the appellant under Section 313 CrPC was recorded, in which he denied the incriminating circumstances appearing against him and pleaded innocence. The appellant has examined Jainath Poya (DW-1) as his defence witness. 4 5. The learned Special Court, after appreciation of oral and documentary evidence available on record, vide its judgment dated 15.3.2023, finding the evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused, as mentioned in the opening paragraph of this judgment, against which, this appeal has been filed. 6. Learned counsel for the appellant submits that the victim was held to be minor on the basis of her date of birth mentioned in the Dakhil Kharij Register, that too of the middle school. Dakhil Kharij Register of the primary school has not been filed or proved. PW-2 is father of the victim, who himself has admitted in the cross-examination that the date of birth of the victim was recorded by the teacher on the basis of assumption and it was not recorded on the basis of birth certificate or any other document, therefore, learned counsel submits that holding the victim minor on the basis of Dakhil Kharij Register (Ex-P/7C) is illegal. He further submits that the appellant has not committed rape on the victim. There are material contradictions and omissions in the deposition of the victim. All the supporting witnesses are interested witnesses, no independent witnesses have been examined by the prosecution. Therefore, evidence adduced by the prosecution is not concrete to hold the appellant guilty for any of the offence charged against him. But the learned special Court, only on the basis of unlawful evidence, has convicted the appellant, which is perverse and illegal, hence, he prays that the appeal may be allowed and the appellant may be acquitted of the charges by setting aside impugned judgment. 7. Per contra, learned counsel for the State would submit that impugned judgment is based on well appreciation of the evidence, hence, the appeal is liable to be rejected. 5 8. I have heard learned counsel for the parties and perused the material available on record as well as the impugned judgment. 9. The learned Special Court has held the victim to be a minor on the date of incident and has calculated her age as 16 years and 11 months on the date of incident, i.e. 29.5.2020, treating her date of birth to be 04.6.2003 mentioned in the Dakhil Kharij Register. 10. The victim (PW-1), in her deposition, has not stated her age on the date of incident and she has also not stated her date of birth. But in the cross-examination, she has stated that at the time of the incident, her age was 16 years. PW-2, father of the victim, has stated that on the date of incident, victim’s age was 17 years. PW-8 is cousin brother of the victim. In his deposition, he has also not stated the age of the victim on the date of incident or her date of birth. To prove the age/date of birth of the victim, Dakhil Kharij Register (Ex-P/7C) has been filed by the prosecution, which is of middle school, Khagra Distt. Balrampur-Ramanujganj, in which her date of birth has been mentioned as 04.6.2003. Neither Dakhil Kharij Register of the primary school, where the victim was admitted in Class-I, has been seized or proved by the police, nor her birth certificate etc. has been filed/proved. PW- 2, father of the victim has admitted in cross-examination para 8 that date of birth of the victim was recorded in the school on the basis of assumption by the teacher, meaning thereby aforesaid date of birth was not recorded by the father of the victim or person who had taken her for admission in the school where she was admitted for the first time. 11. In the matter of Babloo Pasi v. State of Jharkhand and another [(2008) 13 SCC 133], Hon’ble Supreme Court has held in para 28 & 29 as under:- 6 “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 date14 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 Vs. Anand Purohit [(1997) 4 SCC 24]”. 29. ……………………………...in the absence of evidence to show on what material the entry in the voters' list in the name of the accused was made, a mere production of a copy of the voters' list, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused…………………………...” 12. Further in the matter of Madan Mohan Singh and Others Vs. Rajni Kant and Another [(2010) 9 SCC 209], it was observed that the entries made in the official record by an official or person aurthorised in performance of official duties may be admissible under Section 35 of the Evidence Act but, the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/ school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 7 13. Thus, it is settled law that only on the basis of Dakhil Kharij Register, the date of birth mentioned therein cannot be held proved unless it is proved in accordance with law, as has been held by the Apex Court in the aforecited cases, which has not been proved in the instant case. Further, father of the victim himself has admitted that date of birth mentioned in the Dakhil Kharij Register was recorded by the teacher on the basis of assumption. Therefore, it cannot be held proved that the date of birth, i.e. 04.6.2003 mentioned in the school record, is the actual date of birth of the victim. Therefore, it is held that finding recorded by the learned Special Court that the victim was minor i.e. she was below the age of 18 years on the date of incident, is perverse and illegal, hence, the same is not sustainable. 14. So far as the allegation of abduction and rape on the victim by the appellant and other charges levelled against him are concerned, the victim (PW-1) has stated that she had gone to attend the marriage ceremony of the appellant in his house with her sister and other persons. She has further stated that when she came out of the house of the appellant along with her sister, that time the appellant took her to the field where he raped her. 15. Dr. Vinika Bhagat (PW-3) has examined the victim on 29.5.2020 and found abrasions on her both legs and the victim also complained pain on her waist. She has opined vide MLC report Ex-P/2 that physical relation was made with the victim within 17 hours of the examination. Two vaginal slides of the victim were prepared by the doctor, undergarment of the victim was also seized, which were sent to the FSL along with underwear of the appellant. Though FSL report has not been exhibited by the Special Court (which is marked by this Court as ‘Article A1’), but in that FSL report, semen 8 and human spermatozoa have been reported to be found in the vaginal slides (Article A & B) and panty (Article D) of the victim, thus medical report and FSL report is supportive to the deposition of the victim that physical relation was made with her. 16. The victim (PW-1) has stated in her deposition that during the incident, her brother and uncle came at the place of incident, then the appellant fled away from the spot, subsequently, he was caught by her brother, then the appellant put sand in his mouth by holding his neck. 17. PW-8 is brother of the victim. He has deposed that at the time of the incident, i.e. about 2.30 am, he was in his house, his uncle was getting some work done by JCB beside his house, at that time, on hearing the screams of the victim, he came out of his house and saw that the victim was being raped by the appellant. He has further stated that while he was trying to separate the appellant from the victim, at that time the appellant caught hold his neck and slammed him on the ground. He has further stated that on hearing his voice, many villagers came there and rescued him from the accused. Thus, the incident was not only seen by PW-8, rather it was also seen by uncle of the victim and various other villagers, who reached to the place of occurrence upon hearing the voice of PW-8. But the prosecution has neither examined the uncle of the victim nor examined any villager or any independent witness. 18. Dr. Umesh Yadav (PW-4) examined the appellant on the next date of incident, i.e. 30.5.2020, but he has not stated in his deposition that he found any injury on the person of the appellant. If the appellant had made any forceful physical relation with the victim, then to resist him, she would have scratched or abraded him, which would have resulted in some injury 9 marks on the body of the appellant, but no such injury has been reported to be found by Dr. Umesh Yadav (PW-4) on the person of the appellant. On the other hand, the victim herself has stated in her deposition that during incident, she had not cried. 19. It is also alleged that the appellant had assaulted brother of the victim (PW-8) by putting sand in his mouth by holding his neck, but no medical examination of the brother of the victim has been got done by the prosecution. PW-8 himself has not stated in his deposition that any injury was sustained to him. Further, no independent witness has been examined by the prosecution to substantiate the deposition of the victim, her father and her brother (PW-8). 20. In view of the above discussion, the evidence adduced by the prosecution does not inspire confidence of the Court to hold the appellant guilty for the offence of abduction and rape of the victim and assault on her brother, as no independent witness and even uncle of the victim, who is said to be eye witness of the incident, has been examined and from the deposition of the victim, it is found that she neither cried for help nor caused any injury or used force upon the appellant by scratching or abrading him. Thus, it is found that the learned Special Court has held the appellant guilty for the alleged offence only on the basis of very weak type of evidence, whereas from the circumstances appearing from the evidence adduced by the prosecution, it cannot be ruled out that it was consensual relation and it has also not been proved by the prosecution beyond reasonable doubt that the victim was minor on the date of incident, therefore, the impugned judgment is found to be perverse and illegal, hence, the same is not sustainable, as the prosecution has failed to prove its case beyond reasonable doubt. 10 21. Accordingly the appeal is allowed. Impugned judgment of conviction and order of sentence passed against the appellant for the offences punishable under Sections 363, 366, 376(1) and 323 IPC and Section 4 of the POCSO Act are set aside and the appellant is acquitted of the said charges. The appellant is in jail. He be set at liberty forthwith, if not required in any other case, subject to compliance of Section 481 of the Bhartiya Nagrik Surkasha Sanhita, 2023, before the concerned trial Court in its satisfaction. The fine amount, if paid, shall be refunded to the appellant. 22. Let a certified copy of this judgment along with record of the concerned trial Court be transmitted forthwith for compliance and necessary action, if any. Sd/- (Naresh Kumar Chandravanshi) Judge Bini