1 2025:CGHC:58863 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1191 of 2022 Pawan Nirala S/o Dhansai Nirala Aged About 19 Years R/o Durug, Chowki Beladula, Police Station Sarsiwa, District : Balodabazar-Bhathapara, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Sarsiwa (Police Chowki- Beladula), District : Balodabazar-Bhathapara, Chhattisgarh ... Respondent For Appellant : Mr. Vikram Pratap, Advocate For Respondent/State : Mr. Pratik Tiwari & Mr. Shailesh Puriya, P.L. (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 04/12/2025 1. This criminal appeal has been preferred under Section 374(2) of the CrPC against judgment of conviction and order of sentence dated 19.7.2022 passed by Upper District and Sessions Judge, Fast Track Special Court (POSCO Act.), Baloda Bazar, (CG) in Special Criminal Case (POCSO) No.12/2019, 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. 12 of POCSO Act RI for 03 months Rs.5000/- RI for 06 month 02. 354A 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. BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.12.08 16:42:21 +0530 2 2. The prosecution story in brief is that on 12.02.2019 at about 2.00 pm, the victim (PW-2) was returning home from the school along with her friend Arti (PW-5) and when they reached near the bank of the pond, the appellant came there, caught hold the hand of the victim and took her towards Shiv temple telling that he loves her, which was declined by the victim. At that time, Harish Mahilane,brother of the victim (PW-4) reached there and took her to home. Written complaint (Ex-P/2) was made by the victim in Police Chouki Beladula, Police Station Sarsiwa, Distt. Baloda Bazar, based on which unnumbered FIR (Ex-P/3) was lodged for the offence under Section 354 IPC and Section 08 of Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and thereafter numbered FIR (Ex-P/14) was registered in Police Station Sarsiwa Distt. Baloda Bazar. Statement of the victim was got recorded from Judicial Magistrate First Class, Bilaigarh vide Ex-P/5, spot map (Ex-P/1) was prepared, copy of Dakhil Kharij Register (Ex-P/8C), pertaining to the victim, was seized vide Ex-P/7. Statement of the witnesses were recorded. The appellant was arrested vide Ex-P/12. 3. After completion of investigation, charge sheet was filed against the appellant for the offences under Section 354 IPC and Section 08 of the POCSO Act before the Fast Track Special Court, Baloda Bazar (henceforth referred as ‘trial Court’). The learned trial Court framed charges for the offence under Section 354 IPC and Section 08 of the POCSO Act and explained to the appellant, who abjured the guilt and entered into trial. 4. In order to bring home the guilt of the appellant, the prosecution has examined as many as 07 witnesses and exhibited 14 documents. Statement of the appellant under Section 313 CrPC was recorded, in which 3 he denied all the incriminating circumstances appearing against him and pleaded innocence. No witnesses have been examined by the appellant. 5. After appreciation of oral and documentary evidence available on record, the learned trial Court, instead of offence under Section 354 IPC and Section 08 of the POCSO Act, the appellant has been convicted for the offence under Section 354A IPC and Section 12 of the POCSO Act and sentenced him as has been mentioned in the opening paragraph, against which, this appeal has been filed. 6. Learned counsel for the appellant submits that the victim (PW-2) has been held minor by the trial Court only on the basis of Dakhil Kharij Register (Ex-P/8C) of the Higher Secondary School of the victim, in which her date of birth has been mentioned as 31.12.2003. However, Smt. Kamalrani Dahariya (PW-6), who is the Principal of Govt. Higher Secondary School, Durug, has admitted in her cross-examination that date of birth of the victim was recorded on the basis of her marksheet of Class-VIII and her transfer certificate. But Dakhil Kharij Register of the school, where the victim first attended, was not produced and the victim (PW-2), her father (PW-1) and her brother (PW-4) have not stated in their deposition in respect of age of the victim and also on the basis of which document her aforesaid date of birth was mentioned in the school record. Hence, the finding recorded by the learned trial Court that the victim was minor on the date of incident is without any legal evidence. He would further submit that all the witnesses examined by the prosecution were interested witnesses and no independent witness has been examined. Even PW-4, brother of the victim, has controverted his statement of examination-in-chief. Arti (PW-5) is also said to be eyewitness, who was returning from the school along with the victim, but she has not 4 supported the case of the prosecution and she completely turned hostile. PW-1 is father of the victim, but he is hearsay witness. Despite that, the learned trial Court has convicted the appellant only on the basis of deposition of the victim, which suffers from contradictions and omissions also. Hence, judgment rendered by the learned trial Court is perverse to the evidence available on record. Therefore, he prays that the appeal may be allowed and the appellant may be acquitted of all 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. 8. I have heard learned counsel for the parties and perused the material available on record as well as the impugned judgment. 9. In the instant case, the prosecution has examined only 07 witnesses. PW-2 is victim, PW-1 is her father, PW-3 is her sister, PW-4 is her brother and PW-5 is her friend. PW-6 is Principal of Higher Secondary School of the victim and PW-7 is investigating officer. As per the case of the prosecution, the victim was minor, as her age was 15 years and 01 month on the date of incident . Age of the victim was determined by the learned trial Court only on the basis of date of birth i.e. 31.12.2003 mentioned in the Dakhil Kharij Register (Ex-P/8C) of the victim, which was seized vide Ex-P/7 by PW-7, but it was the Dakhil Kharij Register of Higher Secondary School of the victim. However, Dakhil Kharij Register of the first school attended by the victim has neither been seized nor proved by the prosecution. 10. Smt. Kamalrani Daharaiya (PW-6) is Principal of Govt. Higher Secondary School, Durug, from whom Dakhil Kharij Register was seized. She 5 has stated that in the aforesaid register, date of birth of the victim was mentioned on the basis of her date of birth mentioned in the marksheet of Class-VIII and transfer certificate. Neither the victim, her father, brother, or sister have stated her date of birth in their deposition nor it has been proved by the prosecution that said date of birth of the victim was recorded in the school record on the basis of which document, rather the victim herself has admitted in her cross-examination para 2 that her date of birth was mentioned in the school record by her father on the basis of assumption. She has also admitted in the cross-examination para 2 that age of her elder brother was 23-24 years on the date of recording of her deposition i.e. 14.6.2019. She has also admitted that PW-4 is her younger brother, whose age has been mentioned as 23 years in his deposition. She has also admitted that gap between their birth is 1-2 years. On this count, in 2019 i.e. on the date of incident (12.02.2019), she would have been about 21-22 years old, which means she was an adult on the date of incident. 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:- “28. It is trite that to render a document admissible under Section 35 of the Evidence Act, 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 6 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. 13. In the instant case, as has been discussed in the preceding paragraphs that neither the victim or her relative witnesses have stated her date of birth nor any valid document has been filed or proved in this regard. Dakhil Kharij Register of the school in respect of the victim has also not been proved in accordance with law, as has been enunciated by the Apex Court in the aforesaid judgments. Therefore, it is found that the learned trial Court has held the victim minor on the date of incident without any lawful evidence as the prosecution has utterly failed to prove aforesaid facts. Hence, finding recorded by the learned trial Court that the victim was minor on the date of incident is found to be perverse and illegal, hence, the same is not 7 sustainable, consequently, conviction of the appellant for the offfence under Section 12 of the POCSO Act, also deserves to be set aside. 14. So far as the conviction of the appellant for the offence under Section 354A IPC is concerned, the victim (PW-2) is stated that while returning from school, the appellant caught hold her hand and dragged her towards temple by saying that he will perform marriage with her. This statement has also been supported by PW-4, who is brother of the victim in examination in chief, but he has controverted that statement in his cross- examination. PW-1 is father of the victim and PW-3 is sister of the victim, both are hearsay witnesses, to whom the victim had told about the incident. 15. Arti (PW-5) is eyewitness of the incident as she was returning from the school along with the victim, but she has not supported the case of the prosecution, rather she turned hostile. Thus, except the victim, there is no other material witness to substantiate her statement. PW-4, brother of the victim, himself has contradicted his statement in examination-in-chief. If the appellant had dragged the victim, then she would have been sustained some injuries, but the victim or her relatives have not stated in their deposition that she had sustained any injury. 16. Though the victim has declined the suggestion of the defence counsel that she was also having love affair with the appellant and she had written love letters to him, but while making submission, counsel appearing for the appellant informed the Court that the victim has performed marriage with the appellant and they have also been blessed with two children. While hearing the victim on 17.8.2022 to consider the application for suspension of sentence and grant of bail, filed by the appellant under Section 389 CrPC, victim herself has stated that she has performed marriage with the appellant. 8 This fact shows that FIR was lodged by the victim on the behest of her family members, as it seems that she was seen with the appellant by her brother (PW-4), who himself has rebutted his statement of examination-in-chief in his cross-examination. Therefore, convicting the appellant only on the basis of deposition the victim is not found to be safe. 17. In view of the above discussion, it is found from the evidence available on record that, the appellant cannot be held guilty for the offence under Section 354A IPC and Section 12 of the POCSO Act, but without considering the evidence available on record in its true perspective, the learned trial Court has convicted and sentenced the appellant for aforesaid offences, which is perverse to the evidence available on the record. Hence, the same deserves to be set aside. 18. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence passed against the appellant for the offences punishable under Section 354A IPC and Section 12 of the POCSO Act are set aside/quashed and the appellant is acquitted of the said charges. He be set at free. 19. The appellant is on bail. The bail bonds furnished by him shall remain in operation for a period of 06 months from today, in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 20. Let a certified copy of this judgment along with record of the concerned Court below be transmitted forthwith for compliance and needful, if any. Sd/- (Naresh Kumar Chandravanshi) Judge Bini