1 2025:CGHC:58905 The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full -- -- 04.12.2025 05.12.2025 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 158 of 2009  Sazid @ Golu, S/o Abdul Majid, aged 21 years, R/o Sheetlapara, Kanker, District Kanker (C.G.) ... Appellant versus  State of Chhattisgarh Through : Station House Officer, Kanker (C.G.) ... Respondent For Appellant. - Ms. Prachi Singh, Advocate For Respondent - Ms. Sunita Sahu, P.L. Hon'ble Smt. Justice Rajani Dubey (Judgment On Board ) 2 04/12/2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 11.02.2009 passed by the Additional Sessions Judge, North Bastar Kanker (C.G.) in S.T. No.122/2007 convicting and sentencing the accused/appellant as under :- CONVICTION SENTENCE Under Section 363 of IPC R.I. for 05 years and fine of Rs.2000/-, in default of fine amount to further undergo additional R.I. for 06 months. 2. Prosecution story, in brief, is that on the occasion of Rakhi festival, on 28.08.2007, 17 years old daughter (PW-1) (hereinafter referred to as ‘prosecutrix’) of complainant/mother of prosecutrix (PW-8), her friend and brother-in-law Om Prakash had gone to Risewada for the Rakhi ceremony. While the three of them were returning to their home at Kanker, at about 4:00 p.m., in the lane at Thelkabod, accused Golu alias Sajid arrived on a motorcycle along with his associate, co-accused Dilip, and after getting Dilip off the motorcycle, accused Golu alias Sajid, along with the Prosecutrix, her friend and Omprakash, came to Khaparapara on the same motorcycle. There, on the pretext of getting the Rakhi tightened, accused Golu 3 continued misleading them. Thereafter, accused Golu alias Sajid called his brother Mohd. Javed on his mobile phone. At around 5:00 p.m., Javed arrived at Khaparapara with Dilip on a motorcycle. After Omprakash went to urinate, accused Golu alias Sajid made the prosecutrix and her friend sit on the motorcycle and took them towards Thelkabod, while Javed and Dilip followed them on another motorcycle. Omprakash somehow reached home and informed the complainant/Mother of Prosecutrix (PW-8). On 29.08.07, friend of prosecutrix was found near the I.E.S. Colony, who stated that accused Sajid alias Golu had taken away the victim/prosecutrix after abducting her. The complainant then lodged a report at Police Station Kanker. Accused Sajid alias Golu took the victim/prosecutrix to various places and committed rape upon her. On 01.09.2007, when the accused Sajid Khan’s father, Abdul Majid, brought the prosecutrix to the police station and produced her, her recovery panchnama was prepared. With the consent of the prosecutrix and her mother Latabai and after obtaining permission from the Sub-Divisional Magistrate, the medical examination of the prosecutrix was conducted. The clothes and slides of the prosecutrix and accused Sajid alias Golu were seized. A Hero Honda 4 motorcycle bearing registration No. CG-19-B-3642 was seized from Abdul Majid in the presence of witnesses. The prosecutrix’s mark-sheet was obtained, which recorded her date of birth as 02.06.1991. The statements of the witnesses were recorded. After completion of usual investigation, the charge-sheet was filed against the accused persons under Sections 363, 366, 376, 34 of IPC before the Court of the Chief Judicial Magistrate, Kanker. 3. After filing of the charge sheet, the learned Trial Court framed charges against accused Sajid @ Golu under Sections 363, 366, 376 of IPC & against accused Mohd. Javed and Dipil under Sections 363 & 366 of IPC. 4. So as to hold the accused/appellants guilty, the prosecution examined as many as 11 witnesses. Statement of the accused persons were also recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. The accused persons did not produce any evidence in their defence. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record, while acquitting the present accused/appellant from the offence under Sections 366 and 376 & co-accused persons 5 from the offence under Sections 363 and 366, convicted and sentenced the present accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that the impugned judgment of conviction is illegal, bad and contrary to the law applicable to the facts and circumstances of the case. There is no single cogent reliable witness who can independently described the incident. The learned Trial Court failed to see that there is no ingredient in the prosecution story to hold the appellant guilty for committing the alleged offence. A false story has been concocted against the accused/appellant with an ulterior motive. Learned counsel further submits that according to the prosecution, the place of incident is a public place where many houses were situated and it is highly unbelievable that none of the resident of these houses had heard the incident, which creates suspicion. Further, there is inordinate delay in lodging the FIR and no plausible explanation has been offered in this regard. The prosecution has not proved its case beyond reasonable doubt, therefore, the appellant is entitled for acquittal. 7. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the prosecution has 6 been successful in proving its case beyond reasonable doubt and there is no infirmity or illegality in the impugned judgment of conviction and order of sentence, as such, the appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the material available on record. 9. It is clear from the record of the learned Trial Court that charges under Sections 363, 366 and 376 IPC were framed against present accused/appellant – Sajid @ Golu and 363 & 366 of IPC against co-accused persons and after appreciation of oral and documentary evidence, the learned trial Court, while acquitting the present accused/appellant from the offence under Sections 366 and 376 & co-accused persons from the offence under Sections 363 and 366, convicted and sentenced the present accused/appellant under Section 363 of IPC. 10. The learned Trial Court finds that the prosecutrix (PW-1) was above 16 years of age but below 18 years. It is apparent from the record of the learned Trial Court that the prosecution has filed copy of school admission register (Ex.P-9) to prove the age of the prosecutrix. 11. K. R. Gajballa (PW-7), Principal of Primary School, Rajapara, Kanker, has stated that as per school admission 7 register (Ex.P-9), the prosecutrix name was entered at Sl. No.6998, which recorded her date of birth as 02.06.1991. According to this register, the date of admission of the prosecutrix in 1st class was recorded as 05.07.1996 and she left the school in class 4 on 01.02.2006. In cross- examination, this witness has admitted that no document or birth certificate of the prosecutrix is available in the school record and in absence of any document/birth certificate, they entered the date of birth of student as stated by the parents orally. This witness has also admitted that he was not posted in the school at the time of admission of prosecutrix, therefore, he cannot tell that who had come at the time of her admission and on what basis the date of birth of the prosecutrix was recorded. 12. The prosecutrix (Pw-1) has categorically stated that she does not remember her date of birth. 13. The prosecution did not file any birth certificate or any document regarding the age of the prosecutrix. PW-7 has admitted that he was not the author of date of birth of the prosecutrix in school admission register (Ex.P-9). 14. 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 8 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 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. 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 9 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 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 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.” 15. Having considered the rival submissions and upon meticulous evaluation of the oral and documentary evidence available on record and in view of Alamelu (supra), this Court finds that the conviction of the present appellant under 10 Section 363 IPC is wholly unsustainable in law. The prosecution was under a statutory obligation to establish, beyond reasonable doubt, that the prosecutrix was a minor on the date of the alleged incident. However, the evidence adduced is insufficient and unreliable for determination of age. The prosecution mainly relied upon the school admission register (Ex. P-9). 16. PW-7, Principal, who produced the register, has categorically admitted that no birth certificate or supporting document of the prosecutrix was available in the school record, and prior to 1999, the date of birth of student was being recorded on the oral information furnished by parents at the time of admission, he was not posted in the school at the time of admission of prosecutrix and he had no personal knowledge as to who had brought the prosecutrix for admission or on what basis the date of birth was entered/recorded in the school admission register. 17. In view of these admissions, Ex. P-9 has no evidentiary value for determining the age of the prosecutrix. It is well settled that entries in school register unsupported by foundational documents and proved by a witness who is not an author of the said entry cannot form a reliable basis for age determination. The prosecutrix (PW-1) herself 11 expressed inability to state her date of birth. No birth certificate, medical age-determination report, or any other independent evidence has been produced by the prosecution. Thus, age of the prosecutrix has not been proved beyond reasonable doubt. 18. Once the prosecution has failed to establish minority of the prosecutrix, the very foundation of the charge under Section 363 IPC collapses. The prosecution story further suffers from material contradictions and improbabilities. The learned Trial Court has itself disbelieved the prosecution case to the extent of acquitting the appellant from the graver charges under Sections 366 and 376 IPC and acquitting the co-accused persons from all charges. Having held the prosecution story doubtful and inconsistent for major charges, the learned Trial Court erred in selectively relying on the same evidence to convict the appellant under Section 363 IPC, without any legally admissible proof of age. 19. In the considered opinion of this Court, the prosecution has failed to prove its case beyond reasonable doubt. The circumstances put forth by the prosecution are not free from doubt and do not establish either minority of the prosecutrix or the commission of the alleged act of taking away by the appellant. Accordingly, giving benefit of doubt, the conviction 12 of the appellant under Section 363 IPC cannot be sustained and is liable to be set aside. 20. In the result, the appeal is allowed. Conviction of the accused/appellant under Sections 363 and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charge by extending him benefit of doubt. 21. The appellant is on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 22. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.12.05 16:29:52 +0530