1 2025:CGHC:10114 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 260 of 2022 Judgment reserved on : 20.01.2025 Judgment delivered on : 28.02.2025 1 - Pankaj Sahu S/o Shri Rakesh Sahu Aged About 23 Years Resident Of Hariom Nagar , Ward No. 19, Police Station Basantpur , District Rajnandgaon Chhattisgarh. Appellant versus 1 - State Of Chhattisgarh Through the O.P. Chikhali, Police Station City Kotwali, Rajnandgaon, District Rajnandgaon, Chhattisgarh. Respondent For Appellant : Mr. Pushpendra Kumar Patel, Advocate For Respondent : Mr. Akhilesh Kumar, GA Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. The present appeal is directed against the judgment of conviction and order of sentence dated 27.01.2022 passed by the learned Additional Session Judge (FTSC), Rajnandgaon (C.G.) in Special Criminal (POCSO) Case No.61/2019, whereby the appellant has been convicted and sentenced in the following manner:- Digitally signed by RAMAKANT NIRALA 2 Sr.No. Conviction Sentence 1. u/S 363 of IPC RI for 3 years with fine of Rs.1,000/- and in default of payment of fine amount, additional RI for 6 months 2. u/S 366 of IPC RI for 3 years with fine of Rs.1,000/- and in default of payment of fine amount, additional RI for 6 months 3. u/S 376 (2) of IPC RI for 10 years with fine of Rs.1,000/- and in default of payment of fine amount, additional RI for 6 months All the sentences shall run concurrently. 2. The prosecution case, in brief, is that on 02/02/2019 a missing report was lodged by the mother of the prosecutrix that some unknown person had kidnapped her, thereafter crime was registered under section 363 of the IPC. During investigation the police recovered the prosecutrix from the custody of the present appellant. It has been alleged that the present appellant committed forceful sexual intercourse with the prosecutrix. The complainant lodged a report against the present appellant for commission of the above mentioned crime and after investigation, the charge sheet was submitted before the Magistrate concerned. During trial the prosecution examined 15 witnesses to bring home the charges against the accused/ appellant and on the basis of the evidence adduced by the prosecution and material available on record, learned trial court 3 convicted the accused/appellant, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The prosecutrix had clearly stated in her statement before the court below that the prosecutrix and the present appellant had a love affair. The medical examination of the prosecutrix reveals that there were no signs of any forceful sexual intercourse on her private parts. It was also stated by Dr. Ekta Daniel (PW-12) that there was no injury on any parts of the body of the prosecutrix. The prosecution has also failed to prove this fact that the prosecutrix is below 18 years of age. Therefore, the impugned judgment is liable to be set aside. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Alamelu & Anr vs State Rep. By Inspector Of Police, reported in (2011) 2 SCC 385. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material 4 available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 363, 366, 376 (2) & 506 Part-II of IPC and Section 6 of POCSO Act against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court acquitted the appellant under Section 506 Part-II of IPC and convicted him under Sections 363, 366 & 376 (2) of IPC and Section 6 of POCSO Act, as mentioned in para 1 of the judgment. 7. As per the prosecution, on the date of incident, the prosecutrix (PW-2) was minor. She stated that her date of birth is 06.11.2002. The mother of the prosecutrix (PW-1) stated that her daughter is aged about 17 years and in the cross-examination, she admitted that she did not get made her date of birth certificate. The father of the prosecutrix (PW-3) stated that the prosecutrix is aged about 16-17 years. 8. To prove the age of the prosecutrix, the prosecution examined principal of Gurunanak Primary Shool, Dallirajhara namely PW-8 Pushpa Sao and she filed admission register (Ex-P/26) and she stated that as per this register, date of birth of the prosecutrix is 06.11.2002. She was admitted in Class-1 on 14.07.2012 but in the cross-examination, she admitted that in Ex-P/26, entry was not made by her and on what basis the same was made she cannot tell. She also cannot tell as to who came to admit the prosecutrix in the school. 5 9. 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 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 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 6 Constitution, as in that case the accused may unjustly be convicted.” 10. In view of the aforesaid legal proposition, it is clear that in the case in hand, the prosecution has failed to prove the age of the prosecutrix below 16 years of age. 11. The prosecutrix (PW-2) stated in the examination-in-chief that she used to talk to the accused over mobile phone. She stated that on 02.08.2019, she went to Hanuman temple, where the accused came and they both went to bus stand by auto and from there they went to Dongargarh and stayed at lodge where the accused committed sexual intercourse with her twice. In the cross-examination in para 11, she admitted that she felt good while talking to the accused. It is true that she herself had told the accused that she wants to reside with him. She also admitted that the accused had told her that since he is married, he does not want to talk to her. Thus, the statement of the prosecutrix clearly shows that she is the consenting party to the act and the prosecution has also failed to prove that the prosecutrix is below 16 years of age, but the learned Trial Court did not appreciate these aspects of the mater and wrongly convicted the appellant for the aforesaid offences, as such the finding recorded by the learned Trial Court is not sustainable. 12. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Sections 363, 366 & 7 376 (2) of IPC. 13. The appellant is in jail. He be released forthwith if he is not required to be detained in any other offence. 14. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith, 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. 15. 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 Nirala