1 2026:CGHC:19509 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 727 of 2009 Brijraj Singh @ Bijju S/o Sahasram R/o Anchhimar P.S. Balco Nagar, District- Korba (C.G.) ... Appellant versus State of Chhattisgarh, through Police Station- Balco Nagar, District- Korba (C.G.) ... Respondent _____________________________________________________________ For Appellant :Ms. Nirupama Bajpai, Advocate. For State :Mrs. Shubha Shrivastava, Panel Lawyer. _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey Judgment on Board 28.04.2026 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 25.09.2009 passed by learned Second Additional Sessions Judge, F.T.C., District- Korba (C.G.) in Sessions Trial No. 56/2007, wherein the said Court convicted the appellant and sentenced him as under :- Conviction Sentence Under Section 363 of IPC R.I. for 03 years and fine of Rs. Digitally signed by AMIT PATEL 2 1000/-, in default of payment of fine, to undergo additional R.I. for one month. Under Section 366 of IPC R.I. for 03 years and fine of Rs. 1000/-, in default of payment of fine, to undergo additional R.I. for one month. (Both the sentences are directed to run concurrently) 2. The prosecution’s case, in brief, is that on 30.03.1999 at about 08:00 hours, the mother of the prosecutrix, accompanied by her son, went to the house of Lakhan Singh’s wife in the village. Her seventeen-year-old daughter (prosecutrix) was alone at home. At approximately 12:00 PM, the prosecutrix was going to the pond to take a bath when the accused Sarvan Singh and and co-acused Bijju @ Brijraj, from the same village, went to the Peepal tree outside the village and forcibly grabbed prosecutrix's arm and when she tried to free her arm, the accused threatened to kill her if she did not go with them. She raised an alarm, but no one responded. The accused persons dragged her, an act witnessed by Subhash Das. Subhash Das informed Sanjay, the brother of the prosecutrix about the incident. When Sanjay attempted to free her from their detention, the accused persons threatened to assault him. Accused Sarwan kicked Sanjay and threatened him to run away if he wanted to save his life. Fearing that the two accused might kill Sanjay, the prosecutrix told her brother Sanjay to go home and call her uncle. Sanjay then returned. Upon returning, Sanjay told his uncle and aunt about the incident and they went to spot, but she was not found. 3 Meanwhile, the accused persons forcibly took the prosecutrix from village Aanchimar to village Hathi Mod, where they stayed overnight in a nursery. When the prosecutrix attempted to raise an alarm, accused Sarwan Singh allegedly covered her mouth. During the night, the accused persons took her to the house of Sarwan Singh’s sister, reaching there at about 05:00 hours. Thereafter, they took the prosecutrix to the house of a friend of co-accused Bijju @ Brijraj in village Chuhribhanta. However, when they were unable to find his friend, the accused persons kept the prosecutrix in a house belonging to a local resident and threatened to kill her if she disclosed the incident to anyone. On the third day, at about 10:00 hours, accused Tribhuvan and Hardayal along with their driver Babulal (PW/21), arrived in a white Maruti car. Thereafter, accused Hardayal, Sarwan Singh, and Bijju @ Brijraj took the prosecutrix from Chuhribhanta to Korba in the said vehicle. The prosecutrix informed accused Hardayal that she had been forcibly taken there, but he did not respond. She was thereafter kept at the house of accused Hardayal in Korba. After keeping her there for two days, accused Hardayal took the accused Sarwan Singh, Bijju @ Brijraj and the prosecutrix from Korba to Bilaspur by evening train and they were stayed at Kamal Lodge. On the following day, accused Hardayal sent Sarwan Singh, Bijju @ Brijraj and the prosecutrix to Bhopal through an acquaintance who was enroute to Bombay. In Bhopal, they stayed at the house of accused Hardayal. In Bhopal, accused Sarwan Singh applied vermilion to the hair part of the prosecutrix and got photographs taken with her and then by threatening her, forcibly had sexual intercourse with her for several times. Approximately, one month later, accused Hardayal brought them by train to Champa and from 4 there, he took the prosecutrix to Bhaisma, calling the prosecutrix's uncle, and sending the prosecutrix to their home through him. Following the forcible abduction of the prosecutrix by accused Sarwan Singh and Bijju @ Brijraj, her mother (PW-3) lodged a complaint on 03.04.1999. Pursuant to the complaint, the Balco Police Station registered a First Information Report on the same day and a duly numbered report was recorded. During the investigation, the police recovered the prosecutrix from her mother’s possession on 06.05.1999. The medical examination of the prosecutrix was conducted, confiscated two petticoats from her and confiscated her Class 8th marksheet from her mother. The medical examination of the accused Sarwan Singh was also conducted and seized the register of Kamal Lodge, Bilaspur. They seized the sealed packets. Statements of the witnesses were recorded. The seized clothes and slides were sent to the F.S.L., Sagar for chemical examination. Accused- Sarwan Singh was arrested after investigation, accused Hardayal Singh, Brijraj Singh @ Bijju and Tribhuvan Singh were declared absconding and challan was presented against them in the subordinate court under sections 363, 366 and 376/34 of IPC. The subordinate court transferred this case to the Sessions Court, Bilaspur on 06.08.1999, which subsequently transferred it to the then Second Additional Sessions Judge, Fast Track Court, Korba. The Second Additional Sessions Judge, Korba, declared accused Bijju @ Brijraj and Tribhuvan Singh as absconding, framed charges against the accused Sarvan Singh and the accused Hardaylal and by judgment dated 30th April 2003, acquitted them of the alleged charges. After the arrest and production of accused Tribhuvan Singh and Bijju @ Brijraj in execution of permanent warrants, the original record was summoned and the 5 case was received by this Court for trial against the said accused by the Sessions Judge, Korba. Based on the material contained in the charge- sheet, the learned trial court framed charges against appellant Bijju @ Brijraj for alleged offences under Sections 363 and 363 read with Section 34 of the IPC, and 366 & 366 read with Section 34 of the IPC and against appellant Tribhuvan Singh for alleged offences under Sections 363 read with Section 34 of the IPC and 366 read with Section 34 of the IPC. The accused persons having abjured guilt were subjected to trial. 3. In order to establish the charges against the accused persons, the prosecution has examined as many as 15 witnesses. The statement under Section 313 of Cr.P.C. of the accused have been recorded, in which they denied the incriminating charges leveled against them and pleaded their innocence that they have been falsely implicated in this case. 4. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record has acquitted the co-accused persons Sarvan Singh, Tribhuwan Singh and Hardaylal Singh of all the charges and thereby convicted and sentenced the present accused/appellant 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 the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case, learned trial Court has completely failed to appreciate that the prosecution has not discharged its primary burden 6 of proving that the prosecutrix was below 18 years of age at the time of the alleged incident. The birth certificate and other relevant documentary evidence were not properly examined or relied upon. In the absence of any credible evidence establishing her minority, the essential ingredient for offences under Section 366 IPC is not satisfied. Several prosecution witnesses turned hostile during the trial. Despite this, the trial Court has erroneously relied upon the same evidence without adequately scrutinizing its veracity. There are material contradictions and omissions in the statements of the witnesses which go to the root of the prosecution’s case. The trial Court’s failure to consider these discrepancies in a holistic manner has resulted in a manifestly unsafe conviction. It is significant to note that the main accused - Sarwan has been acquitted by the learned trial Court after a careful examination of the evidence. The appellant’s involvement is alleged to be of a similar nature and under identical circumstances. No distinguishable incriminating evidence has been brought on record against the appellant which would justify their conviction while the co- accused and the main accused stand acquitted. 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 appellant. 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. 7 8. It is evident from record of learned learned trial Court that it framed charges for offence punishable under Section 363 read with Section 34 of IPC and Section 366 read with Section 34 of IPC against the appellant-Tribhuwan Singh and Section 363 & 363 read with Section 34 of IPC and Section 366 & 366 read with Section 34 of IPC against the appellant- Brijraj Singh @ Bijju and on 21.07.2007, the learned trial Court framed charges against the main accused Sarvan Singh for offence under Sections 363, 366 and 376/34 of IPC and also the co- accused- Hardayal Singh for offence under Sections 363, 366 and 376/34 of IPC and the trial court initially, by judgment dated 30th April 2003, acquitted the accused Sarvan Singh and Hardaylal of the charges. At that time, the appellant Brijraj Singh and co-accused Tribhuwan Singh were absconding. They were later arrested, produced before the court and tried separately. After completion of their trial, the court, by impugned judgment dated 25.092009, convicted the appellant Brijraj Singh for the offences alleged, while acquitting Tribhuwan Singh of all charges. 9. As per the prosecution, on the date of incident prosecutrix was below 18 years i.e., 17 of age and the appellant and other co-accused persons abducted her and the main accused Sarvan committed rape upon her. 10. The prosecutrix (PW-4) stated that she was approximately 18 years old at the time of the incident, her date of birth is 24.02.1982. The prosecution submitted her transfer certificate as Article-A-1, which also records her date of birth as 24.02.1982. This certificate pertains to her Class VIIIth studies at Government Middle School, Chakamar, Block Korba. 8 11. The prosecution has also conducted radiological test of the prosecutrix, PW-11 Dr. Jeetpure has stated that as per X-Ray report, the age of the prosecutrix approximately 18 years and gave his report vide Ex. P/8 and admitted his signature on A to A part. 12. PW-1, mother of the prosecutrix had filed Article -A1 transfer certificate of her daughter, but in para 08 she stated that she does not remember date of birth of his daughter. 13. 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, 42, 43, 44 & 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 thePrincipal. 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. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry 9 or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the 10 "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. ThePrincipal has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 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 11 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.” 14. PW-11 has stated that as per X-Ray report, the age of the prosecutrix is about 18 years and it is well settled as per Modi’s medical jurisprudence, there may be two years age difference on either side. 15. Thus, prosecution has failed to prove this fact that the prosecutrix at the time of incident was below 18 years of age, but learned trial court did not consider this fact. 16. As per the statement of the prosecutrix (PW-4), it is evident that she traveled with the main accused- Sarvan, to Korba and Bhopal by train, bus, and car. During this period, she did not raise any alarm. She also admitted to exchanging love letters (Exs. D/6 to D/11) and possessing photographs with the main accused-Sarvan (Exs. D/12 to D/20). Her statement indicates that she was in a consensual relationship with Sarvan and traveled of her own free will. Additionally, the prosecution has not been able to prove that the prosecutrix was under 18 years of age at the time. Therefore, the offences under Sections 363 and 366 of the IPC against the appellant is not established. 17. Ex consequenti, the appeal is allowed. The appellant is reported to be 12 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. 18. 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