1 - Raju Ojha (Abated) As Per Hon’ble Court Order Dated 05-03-2025. 2 v. State Of Chhattisgarh Through The Police Station Ambagarh, Chouki District Rajnandgaon Chhattisgarh
Case Details
1 HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.06.10 13:14:42 +0530 Reserved on- 15.04.2025 Delivered on-09.06.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 190 of 2005 1 - Raju Ojha (Abated) As Per Hon’ble Court Order Dated 05-03-2025. 2 - Pappu Alias Krishna Giri S/o Narayan Giri Aged About 19 Years R/o Village Dumdum, Police Station Pendra, Police Chouki Lotmi Kala District Bilaspur Chhattisgarh. ... Appellants(s) versus State Of Chhattisgarh Through The Police Station Ambagarh, Chouki District Rajnandgaon Chhattisgarh. ... Respondents For Appellants : Mr. Anjiv Kumar Singh, Advocate For Respondent : Mr. Ankur Kashyap, Dy. G.A. Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment 1. This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellants, assailing the legality, validity and judicial propriety of conviction and order of sentence dated 10.12.2004 passed by the learned Court of Sessions Judge, Rajnandgaon District-
Facts
Rajnandgaon (C.G.) (for short ‘trial Court’) in Session Trial No.127/2004 by which learned trial Court has held the appellants guilty of commission of offence and sentenced as described below - Conviction Sentence Awarded U/s 363 Part-I of Indian Penal Code. R.I. for 5 years 2 2. During pendency of this appeal, appellant No.1 Raju Ojha passed away and his appeal stood abated by order dated 05.03.2025. 3. The prosecution case in brief is that about one month before 10.03.2004 two men posing as saints came and asked her to make arrangement for their stay. They both were living on alms and after there staying for a week, they proceeded away. As marriage was to take place in the house of Kum Bai (Pw- 1), influx of guests had started. That time Kum Bai (Pw-1) again asked them as to why they had come and also asked them to go away looking to the arrival of the guests. On this, those persons told her that after staying there a day or two, they both would leave. On 06.03.2004 at 12.00 pm, the accused/appellants once again came to Kum Bai’s (Pw-1) house claiming illness to stay despite Kum Bai mentioning her sister-in-law's upcoming wedding. On the night of 10.03.2004, during the wedding procession (Barat), Kum Bai found both "saints" and her daughter (victim) Pw-2, missing at 4:00 a.m. She then informed the people of the house, Kotawar and Sarpanch. Aterwards, Kum Bai and her acquaintance Bedkathi (Pw-4) went to Dongargarh to find her daughter. Upon finding a girl with two saints at the Dongargarh railway station, Kum Bai went to the Dongargarh police station and accompanied by two constables, she returned to the railway station and identified her daughter who was with the saints. Thereafter, those accused persons were brought to the police station where complaint was registered at the instance of the complainant. 4. On the above information, First Information Report No.36/2004 Ex.P/1 was registered against both the accused persons under Section 363 & 366 of the IPC and the investigation was set on motion. During the investigation, on 12.03.2004, spot map was prepared Ex.P/3. Statement of the victim (Pw-2) and witnesses were recorded under Section 161 CrPC. 3 5. After due investigation, the charge-sheet was filed before the Competent Court which was committed to learned trial Court. The accused/appellants were charged for commission of offence punishable under Section 363, 366 and they denied the charges and claimed for trial. 6. In order to prove its case, prosecution examined as many as 11 witnesses and exhibited 12 documents. The statement of the appellants under Section 313 CrPC was recorded in which, they claimed innocence and stated that they have been falsely implicated. Learned trial Court after due appreciation of the evidence available on record found that the age of the victim (Pw-2) was less than 18 years and the same was recovered from the possession of the appellants and convicted the appellants for an offence punishable under Sections 363 of IPC and sentenced as aforesaid. However, acquitted the appellants for an offence punishable under Section 366 by the impugned judgment.
Legal Reasoning
made by this Court in the case of Ravinder Singh Gorkhi (supra) 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 (2006) 5 SCC 584 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 Article21 of the Constitution, as in that case the accused may unjustly be convicted." 16. In light of above, this Court is of the opinion that it would not be safe to rely upon Ex.P/12 to determine the age of the victim (Pw-2). There is no doubt that this document is admissible in evidence, but, entry regarding to the age of a person is not of much evidentiary value to prove the age of that persons in absence of material on which the age was recorded. Therefore, the finding of the learned trial Court that the victim (Pw-2) was less than 18 years of age is without proper appreciation of evidence on record and is hereby set aside. 17. Kum Bai (Pw-1) in her evidence before the Court lends evidentiary value to the case advanced by the prosecution. Furthermore, her deposition unequivocally establishes the recovery of the victim (Pw-2) made from the custody of the appellant but the fact remains whether she was taken by the appellants or she herself accompanied them, for the purpose of holding them 9 guilty. 18. Victim (Pw-2) in her statement denied that she was admitted in a school at the age of 7-8 years. She herself stated that she was admitted in school at the age of 6 years. She further conceded her inability to recall her specific date of birth. She stated that the appellant-Pappu offered her "prashad" and upon its consumption, she experienced a state wherein her cognitive faculty became unstable and the appellants started walking ahead, followed by her. She has stated to have been made walk by both the accused-appellants for a long distance and then in the morning they made her board a bus and brought her to Dongargarh. There they made her get down at Dongargarh bus stand and after roaming around here and there, they brought me to Dongargarh railway station where her mother Pw-1 came with the police personnel and both the appellants were with her daughter (victim). Thereafter, she was brought to police station along with the appellants and report was lodged by her mother against them. In her cross-examination she admits that the appellants took her to Dongargarh from Chhuriya bus station and numerous other individuals were present as passengers on the bus. She has admitted that she did not inform any of these individuals that the appellants were acting against her will or taking her without her consent. She admitted that from Dongargarh bus stand and railway station, she went with the appellants by walking and on the way they met several individuals however, she did not seek assistance or inform anyone of her being taken away by the accused-appellants. She gives explanation that the appellants offered her ‘prashad’ subsequent to which she followed them. 19. The victim (Pw-2) is trying to suggest that she was given prashad and thereafter she started following the appellants. But nothing is available on record to suggest that she was given prashad by the appellants rather from the evidence gathered it appears that she followed the appellants, sat with them in 10 the bus there met so many people in the bus and after dropping at Dongargarh they went to the railway station and on the way many people were there. It appears that the prosecutrix did no make any complainant in this regard while she was going with the appellants. It indicates that she had gone with the appellant willingly and also motive on part of the appellant is not established by prosecution. Her statement is also does not reflect that she was forcibly taken by the appellant. As discussed earlier, the prosecution could not prove the age of the victim (Pw-2) beyond reasonable doubt. Therefore, this Court hold that prosecution has failed to prove the guilt of appellant beyond reasonable doubt.
Arguments
7. Learned counsel for the appellant vehemently argued that the conviction of the appellant under Section 363 of IPC is erroneous, contrary to the evidence brought on record and is bad in law. He further submits that the learned trial Court has not appreciated the evidence to its proper perspective and misconceived itself in convicting the appellant for the aforesaid offences. He submitted that the age of victim (Pw-2) below 18 years could not be proved as the complainant herself stated in her cross-examination that the age of prosecutrix was 7 or 8 years when she was admitted in school. Apart from this, there is no other admissible document produced at the time of making the entry in the certificate/mark-sheet (Ex.P-12). In this shaky evidence, the finding recorded by trial Court with regard to age of the victim (Pw-2) to be below 18 years of age requires interference by this Court and is liable to be set aside. 8. Refuting the submissions made by learned counsel for the appellant, Mr. 4 Ankur Kashyap, learned State counsel submits that the finding recorded by the learned trial Court is based upon the proper appreciation of evidence and it does not require any interference. He further submitted that the finding with regard to age of the victim (Pw-2) is absolutely justified on the basis of evidence brought by the prosecution on record. He submits that the high school certificate of the prosecutrix Ex.P/12 which goes to show that the date of birth of the victim (Pw-2) is 07.08.1989 and on the date of incident i.e. 11.03.2004 naturally she was below the age of 18 years. Therefore, the appeal of the appellant is liable to be dismissed. 9. I have heard learned counsel for the parties, considered their rival submissions and perused the records with utmost circumspection. 10. The first contention of the learned counsel for the appellant is that the prosecution was not able to prove that the victim (Pw-2) was less than 18 years of age. Prosecution in order to prove the age of the victim (Pw-2), exhibited a certificate/mark-sheet of the victim (Pw-2) of the District Middle School Examination- 2002 issued containing signatures of District Education Officer, Rajnandgaon, Principal Higher Secondary School, Tumdibod District- Rajnandgaon and Head master, Middle School Korchatola, Rajnandgaon (C.G.). This document is exhibited as Ex.P/12 by Kum Bai (Pw-1). According to this, the date of birth of the victim (Pw-2) was 07-08-1989. Kum Bai (Pw-1) was examined on 09.09.2004 and during her examination, this document was not brought by her. Later on, she was re-examined on 16.10.2004 where she stated that she has brought the Ex.P/12 which was seized by the Police thereafter given in Supurdnama. Photocopy of the same is already on record. In her cross-examination she denied the suggestion that she has entered the date of birth by guesswork rather she has stated the same to be rightly recorded. She has recorded her daughter’s date of birth upon asking from 5 sister. Later on, she also admits that it is also true that she recorded the date of birth of her daughter on the basis of guesswork. In paragraph No. 5 of her examination-in-chief she has stated that at the time of incident, her daughter (victim) was studying in class- 10th and she was 4 month less than 16 years of age. Police has seized the certificate/mark-sheet Ex.P/12. She stated that she is aged about 32 years. Later on, she states that she could not tell her age. She admits that she was married at the age of 14 years and blessed with a son and daughter and victim (Pw-2) is her elder daughter. She cannot tell with certainty as to how much earlier her marriage took place. She further depose that she had gone to get her daughter admitted in school and at that time she was 7-8 years of age. Except the certificate/mark-sheet of the victim (Pw-2), no other evidence is available on record as to how the entry of the date of birth of the victim (Pw-2) was made in the certificate/mark-sheet. 11. Pw-10 Navneet Patil Investigating Officer in his deposition before the learned trial Court admits that he cannot tell as to on what basis the entry of date of birth in the certificate/mark-sheet was made. He further deposed that since the certificate/mark-sheet was available, no other document was recovered with regard to age of the victim (Pw-2). 12. Date of incident is 06.03.2004 and according to the certificate/mark-sheet, victim (Pw-2) is aged about 15 years and therefore the question before this Court is as to whether the age of the victim (Pw-2) can be determined on the strength of Ex.P/12 and whether the said document is admissible in evidence to hold the victim (Pw-2) to be less than 18 years of age. The issuing authority of Ex.P/12 certificate/mark-sheet was not examined. The mother of the victim Kum Bai (Pw-1) says that she was married at the age of 14 years and presently she is aged about 32 years and later on she has stated that she does not know her age though she says that she has recorded the date of birth on being asked from sister. The investigating officer also admits that as the certificate/mark- 6 sheet was available he did not discover any other documents with regard to age of the victim (Pw-2). The mother says that her daughter (victim) is 4 months less than 16 years of age at the time of incident. But the facts remains that there is no such document is available on record to show that on what basis the date of birth of the victim (Pw-2) was entered in the certificate/mark- sheet. 13. In Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 1796) the Hon'ble Supreme Court observed in paras-14 and 15 as under: “14.....If the entry in the scholar's register regarding date of birth is made On the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. 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..... 15. ...To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially 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 to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.…” 14. In the case of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in the case of Birad Mal Singhvi (supra), the Hon’ble Supreme Court held as under:- 7 “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially 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 prove the age of the person in the absence of the material on which the age was recorded." 15. In the case of Alamelu and Another vs. State, represented by Inspector of Police, (2011) 2 SCC 385, the Hon'ble Supreme Court held that the transfer certificate which is issued by the government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme Court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth was examined. In para 40 and 48 of its judgment, the Hon’ble Supreme Court observed 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 8 applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations
Decision
20. Consequently, the appeal is allowed and the impugned judgment of conviction and sentence passed by the learned trial Court is set aside. The appellant is acquitted from the charge levelled against him. Consequence to follow. The record be sent back with copy of this Judgment forthwith for necessary action and compliance. Sd/- (Sachin Singh Rajput) JUDGE H.Ansari