1 2025:CGHC:60956 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 15.12.2025 - 15.12.2025 16.12.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1065 of 2007 1. Vijay Yadav S/o Shri Vishun Dayal, aged about 40 years, R/o Village- Mainpath, P.S. Kamleshwar, District- Surguja (C.G.) 2. Shiv Narayan, S/o Jethu, aged about 65 years, R/o Village- Latori, P.S.- Jain Nagar, District- Surguja (C.G.) (As per Hon’ble Court order dated 24.07.2015, he served whole jail sentence.) ...Appellants Vs. • State of Chhattisgarh, through Police Station- Jai Nagar, District- Surguja, Chhattisgarh. ... Respondent/State _____________________________________________________________ For Appellant No. 1: Ms Prachi Singh, Advocate through Legal Aid. For State : Ms. Sunita Sahu, PL ____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey Judgment on Board 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 31.08.2005 passed by learned Fourth Additional Sessions Judge (FTC), Surajpur, District- Digitally signed by AMIT PATEL 2 Surguja (C.G.) in Sessions Trial No. 340/2004, wherein the said Court convicted the accused and sentenced them as under :- Conviction Sentence Under Section 363 of IPC R.I. for 03 years each with fine amount of Rs. 500/- each, in default of payment of fine to undergo additional R.I. for 06 months each. Under Section 366 of IPC read with Section 368 of IPC and 120 (B) of IPC R.I. for 05 years each, with fine amount of Rs. 500/- each in default of payment of fine to undergo additional R.I. for 06 months. (Both the sentences are directed to run concurrently) 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case that the prosecutrix lives in village Gangapur and is a student of class 9th in Government High School Latori. On the date of incident i.e., 16.01.04, in the morning, she came to Latori school to study. During break time, at the instance of Sudo alias Om Prakash, she went with him from school. Sudo alias Om Prakash took her to the house of his maternal uncle Shivnarayan Badi, where Shivnarayan had locked the prosecutrix in the house and did not let her go home despite her several pleadings. Vijay Yadav and Jagdish Yadav from Mainpat were also staying at Shivnarayan's house. The other accused persons and prosecutrix had food and drink. When the prosecutrix went to the place where she was kept locked to create a ruckus, the accused threatened to kill her and asked her to eat but she did not eat. Then, the accused Om Prakash came to the prosecutrix’s room at night and committed forcible sexual intercourse with her and slept in the same room. In the morning, Shivnarayan asked the 3 prosecutrix to go with them to Mainpat, then all four conspired and took her to Mainpat and Shivnarayan stayed at Latori. The prosecutrix was kept in a hotel in Mainpat and was made to work by Om Prakash. In the hotel, Om Prakash used to cook food, Vijay used to prepare breakfast and Jagdish used to give milk. Then, Om Prakash went back to Latori after meeting Vijay and Jagdish. All four of them abducted her by conspiracy and Om Prakash had committed forcible sexual intercourse with her on the pretext of marriage. Later, the prosecutrix came to know that the accused Om Prakash did not belong to brahmin caste, but belongs to the Tribal Caste. During the investigation, medical examination was conducted of the prosecutrix and obtained the report of the radiologist for determining her age. Underwear and saree of the prosecutrix were seized, spot map was prepared and statements of the witnesses were recorded. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellants for alleged commission of offence under Sections 363, 366, 368 and 120-B of IPC. The appellants/accused having abjured guilt were subjected to trial. 3. In order to bring home the guilt, the prosecution has examined as many as 15 witnesses to prove its case against the appellants. Statement of the accused/appellants were also recorded under Section 313 of Cr.P.C., in which they denied all the incriminating circumstances appearing against them in the prosecution case and pleaded their innocence and false implication in this case. However, one witnesses examined by them in their defence. 4 4. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record thereby convicted and sentenced the accused/appellants as mentioned in inaugural para of this judgment. Hence, this present appeal. 5. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for appellant No. 1 submits that the the prosecutrix was a consenting party to the act of the appellant. The main allegations are against the accused Sudo @ Om Prakash who is absconding, he abducted the prosecutrix and committed forcible sexual intercourse. The prosecutrix herself admits that she voluntarily left her lawful guardianship after attending school, and she willingly went with the accused; therefore, offence under Section 363 of the Indian Penal Code is not made out. The offence under section 366 of IPC is also not made out in this case as the prosecutrix was not being compelled or was under any coercion, as she left with the accused with her own free will. She further submits that the offence under section 368 of IPC is also not made out as the prosecutrix herself admits that she slept with the accused Om Prakash and when he slept throughout night in the room. However, she had sufficient opportunity to escape, but she did not use it, this shows her conduct to have been cooperative with them to a certain extent. The present appellant is resident of Mainpat and he was simply a visitor to the house of accused Shiv Narayan (Appellant No.2) at the instant point of time and he had nothing to do with there either affair. So far as the age of the prosecutrix is concerned, she has already attained the age of majority by reasoning and looking to the opinion of the radiologist her age is above 18 years as the process of development of epiphysis as 5 already begun and in the usual course medically shall be deemed to the above 18 years of the age, which can be said that medically the prosecutrix's age difference is of 03 years on either side, but the learned trial Court has not considered all these facts and convicted the present appellant, therefore, findings recorded by learned trial court are highly perverse. So, the impugned judgment is liable to be set aside. 6. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the present appellant for the aforesaid offences. So, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is evident from record of learned learned trial Court that it framed charges for offence punishable under Sections 363, 366 read with Section 368 of IPC and 120-B of IPC against the present appellant- Vijay Yadav and other co-accused persons. It is further evident in this case that the main accused Sudo @ Omprakash was absconding at the time of filing the charge-sheet and after appreciation of oral and documentary evidence, learned trial Court acquitted the co-accused person Jagdish of the aforesaid charges and thereby convicted the present appellant and other co-accused Shivnarayan for the said offences. 9. Learned trial Court finds in para 15 that date of birth of prosecutrix is 01.06.1987 and on the date of incident she was aged about 16 years 07 months. 6 10. Learned trial Court has relied upon the statements of PW-13 School Teacher Rahi Hasan and PW-14 Kotwar Chatru Ram. 11. PW-14 Kotwar Chatru Ram has stated that the name of the prosecutrix (PW-1) was written in Kotwari Pustika and as per this book, date of birth of the prosecutrix was entered as 02.08.1987, and birth report is Ex. P/23 and he also stated that he is illiterate person and the said entry was made by father of the prosecutrix. In his cross-examination, he admitted this fact he is not aware of date of birth of the prosecutrix that was entered by father of prosecutrix, as he was not apprised of the same by father of the prosecutrix and in para 3 he stated as under…. " यह कहना गलत है किक मैने ्ቚ०पी०-23 का फाम बाद मैं अलग से लिलखवाने के बाद इस किकताब मैं आज ही चिपकाया था। स्वतः कहा जो फाम लगा है वह पहले का है पहले जन्म … वाला फाम नहीं था इसलिलये था उसी में भरे थे .. I He also admitted in para 4 as under:- यह कहना सही है किक जन्म और मृत्यु का सीरिरयल नंबर अलग अलग डालते है तथा किकताब भी अलग अलग होती है। ्ቚ०पी०-23 का फाम किकताब से किनकल गया था और भी जन्म मृत्यु का फाम अलग अलग हो गया है इसलिलये उसको किकताब मैं चिपका किदया हूँ। यह सही है किक जो किकताब आज लाया हूँ उसमे मृत्यु रिरपो्቏ फाम लगे है के वल अकिनता का जन्म रिरपो्቏ फाम एक ही है शेष फॉम मृत्यु रिरपो्቏ … फॉम है ..” 12. It is apparent from Ex. P/23 that all pages are related to " मृत्यु रिरपो्቏ फाम" and only prosecutrix related page is "जन्म/ ”’ मृत् जन्म रिरपो्቏ फॉम . 13. PW-14 has admitted as under :- यह सही है किक जो किकताब आज लाया हूँ उसमे मृत्यु रिरपो्቏ फाम लगे है के वल अकिनता का जन्म रिरपो्቏ फाम एक ही है शेष फॉम मृत्यु रिरपो्቏ फॉम है I मैं भूल गया था और जो किकताब किमली उसी में चिपका किदया क्युकी मैं पढ़ा लिलखा नहीं हु I…..”. He also admitted that the entry of the date of birth of prosecutrix (PW-1) was made by father of the prosecutrix, so statement of PW-14 is not reliable. 7 14. PW-13 Rahi Hasan (School Teacher) has stated that the prosecutrix was admitted in Latori school in Class-IXth on 28.04.2003 and her name was written at Serial No.1245 in admission register/dakhil register (Ex.P/22), wherein her date of birth was written as 01.06.1987. 15. The Hon’ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police,1 observed in paras 40 & 48 of its 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 1. (2011) 2 SCC 385 8 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 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 to 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 9 case the accused may unjustly be convicted.” 16. In the light of above, in this case, it is apparent that in school register, date of birth of prosecutrix was written as 01.06.1987 and in kotwari book, it was written as 02.08.1987. It is also apparent that the prosecutrix was admitted in Class-IXth, however, the prosecution has not filed any register of Class-I, where the prosecutrix (PW-1) was admitted in Class-I. PW-13 admitted this suggestion of defence that date of birth of the prosecutrix was written on the basis of transfer certificate of previous school, so statements of both the witnesses are not legally admissible. 17. PW-10 M.K. Jain Radiologist, who conducted the ossification test of prosecutrix (PW-1) and opined that age of prosecutrix is between 14-16 years, however, he denied the suggestion of defence that there may be one year age difference on either side, but as per Modi’s medical jurisprudence, there may be two years age difference on either side. 18. Thus, this Court finds that in the present case there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was below 18 years of age on the date of the incident. 19. PW-1 Prosecutrix has stated in her examination-in-chief that on the date of incident, in the morning, she went to school to study. During break time, at the instance of the accused Sudo alias Om Prakash, she went with him from school to a nearby place. After some time, the accused took her to vacant house at Latori, where other co-accused persons were present and they held her captive in the room and on the night, the accused Omprakash committed forcible sexual intercourse 10 with her. She admitted the suggestion of defence that she is familiar with the accused Omprakash, therefore, she went along with him. She admitted this suggestion in para 13 that when she went to Mainpat, then she was introduced with the accused Vijay. She admitted in para 16 that she was talking with the accused while going to his house and she use to go to outside the vacant house of accused for defecation, as there was no toilet in the said vacant house. She further admitted that they went towards Mainpat by Jeep, where other people were also present, however, she did not state anything to anyone regarding her abduction, she further stated that while on the way to Mainpat, they reached Ambikapur bus stand, had their breakfast and the place was crowded. Then, they left the Jeep and went to travel on the Bus to go Mainpat, where also she admits that she did not disclose the said incident to anyone. She admitted they worked at Ramashankar's hotel. The hotel was well-run, and many people came for daily breakfast and meals. She used to serve tea and breakfast but never disclosed the incident to anyone. 20. Thus, looking to the admission and conduct of the prosecutrix (PW-1) it clearly shows that she is the consenting party to the act of accused and she went with the accused Sudo@ Omprakash with her own free will, not by any pressure or coercion and the prosecution has utterly failed to prove that the prosecutrix (PW-1) was minor on the date of the incident and also has failed to prove any criminal conspiracy of accused/ appellants as despite having several opportunities, the prosecutrix did not disclose anything to anyone throughout her travelling with the accused and also did not raise any hue and cry while being with the accused, but the learned trial Court did not appreciate all these facts minutely and thereby has wrongly convicted the present appellant for 11 the said offences. 21. Ex consequenti, the appeal is allowed and the impugned judgment dated 31.08.2005 of the learned trial Court is hereby set aside. Appellant No. 1 is acquitted of the charge leveled against him. 22. The appellant No. 1 is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a 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 thereon shall appear before the Hon'ble Supreme Court. 23. 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 AMIT PATEL