1 - Chunnilal Banjare, S/o Budhram Banjare, Aged About 29 Years, R/o Vill v. 1 - State of Chhattisgarh Through S.H.O. Balod, Tah. Balod, Distt. Balod Chhattisgarh. For
Case Details
1 2025:CGHC:37614 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR CRA No. 1002 of 2015 1 - Chunnilal Banjare, S/o Budhram Banjare, Aged About 29 Years, R/o Vill. - Tekapar, Police Station & Tah. Balod, Distt. Balod Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through S.H.O. Balod, Tah. Balod, Distt. Balod Chhattisgarh. For Appellant : Mr. Ravindra Sharma, Advocate For Respondent(s)/State : Mr. Ajay Pandey, G.A. ... Respondent(s) Hon'ble Smt. Justice Rajani Dubey Judgment on Board 31/07/2025 1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the the judgment of conviction and order of sentence dated 18.02.2015 passed by learned II additional Sessions Judge, Balod, District- Balod in S.T. No. 69/2014 whereby the accused/appellant stands convicted under 2 Section 376(2)(n) of IPC and Section 6 of Protection of Children from Sexual Offences Act and sentenced to undergo RI for 10 years, to pay fine of Rs.200/- on each count with default stipulations. 2. Facts of the case, in nut shell, are that the complainant lodged a missing report of his daughter at Police Station- Balod. During the investigation, his daughter was recovered from the possession of accused/appellant- Chunnilal Banjare in the house of Hero Bai in Village- Bharda, Police Station- Gurur. The recovery panchnama was prepared and the prosecutrix was interrogated. On being asked, the prosecutrix told that the accused Chunnilal Banjare forcibly abducted her and sexually exploited her twice (sexual intercourse). Further, she stated that on 17.07.2014, she had left her house to study in village Nevarikala High School. The accused called her to his house in a deceitful manner and made her his wife. When the wife of the accused raised an objection, he took the prosecutrix to house of his mother at village Bharda and kept her there as his wife and committed sexual intercourse with her. Thereafter, with the consent of the prosecutrix and her guardian, after taking permission of Sub- Divisional Magistrate, medical examination of the prosecutrix was done. Medical examination of the accused was also done. The accused was arrested. The statements of the witnesses were recorded. On the basis of the
Facts
missing report, FIR was registered. After completion of investigation, the charge sheet was filed before the learned Chief 3 Judicial Magistrate. From there, the matter was committed to the trial Court. The learned trial Court framed the charges under Sections 363, 366, 366 (A) of IPC and Section 376 (2) (n) IPC read with Section 6 of the Protection of Children from Sexual Offences Act, 2012, to which he abjured his guilt and claimed to be tried. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. In his defence, the appellant/accused examined two witness namely Dhanush Kumar as D.W.-1 and Narendra Kumar as D.W.-2. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 18.02.2015, finding evidence adduced by the prosecution trustworthy, acquitted the appellant of the offence under Sections 363, 366 and 366(A) of IPC and convicted him under Sections 376(2)(n) of IPC read with 6 of POCSO Act and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence passed by learned trial Court is bad both on facts and in law. The learned trial Court 4 failed to appreciate the evidence and the documents on the record and erred in holding that the prosecution has established the case beyond reasonable doubt. The learned trial Court erred in holding that the evidence of Hero Bai (P.W.-11) falsify the prosecution story and ignored the natural conduct of the witness. The learned trial Court erred in appreciating the medical evidence which shows that the prosecutrix is habitual and no injury on her private part. He further submits that there is no legally admissible and convincing evidence available on record to establish that the prosecutrix was below 18 years of age on the date of incident. The prosecution case is based on improvable and unreliable evidence, therefore, the judgment of conviction and sentence imposed on the appellant/accused are liable to be set aside. In support of his contention, he has placed reliance on this Court’s judgment dated 20.02.2025 passed in CRA No. 2364 of 2023 {Chiranjeet Dholai Vs. State of Chhattisgarh} and another connected matter. 6. On the other hand, learned counsel for the State opposes and contends that the victim was minor and below 18 years of age at the time of incident and victim has also stated in her statement that her date of birth is 17.07.2014. Therefore, there is no illegality or infirmity in the findings of the learned trial Court. The accused kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her without her 5 consent. As such, the impugned judgment of conviction and sentence is well merited and does not call for any interference by this Court. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. Upon perusal of record, it is evident that the learned trial Court framed the charges under Sections 363, 366, 366(A) of IPC and Section 376 (2)(n) of IPC read with Section 6 of POCSO Act. Learned trial Court after appreciation of oral and documentary evidence, acquitted the appellant of the charge under Sections 363, 366, 366(A) of IPC and convicted and sentenced him under Section 376 (2)(n) of IPC read with Section 6 of POCSO Act. 9. As per prosecution, prosecutrix is below 18 years of age on the date of incident. 10. Prosecutrix (P.W.-1) stated that her date of birth is 26.03.1997 and she was aged about 17 years on the date of incident. 11. Father of the prosecutrix (P.W.-2) also stated that on the date of incident, the age of the prosecutrix was 17 years and to substantiate the same he gave attested copy of birth certificate to police and police prepared seizure memo vide Ex.P/8. He brought original birth certificate of the prosecutrix and the same is exhibited as Article A. In para 7 of his cross-examination, he stated that he had 6 kept a record of the birth of his children in the register. He admitted that he did not bring the said register before this Court. Further, he denied that he is stating the age of the prosecutrix less to implicate the accused/appellant in a false case. 12. Prosecution also conducted ossification test of the prosecutrix and as per X-ray report (Ex.P/3), age of the prosecutrix is about 15 to 16 years and there is possibility of there being variation of 2 years on either side of age of the prosecutrix. 13. As per X-ray report, it is clear that the age of the prosecutrix is between 15-16 years and doctor also suggested that there is possibility of there being variation of 2 years on either side of age of the prosecutrix. Thus, the age of the prosecutrix might be 18 years also. 14. This Court in the matter of Kishan Dehariya Vs. State of Chhattisgarh passed in CRA No. 559 of 2022 vide order dated 06.12.2023 held in paras 18 & 19 as under:- 18. How Dakhil-Kharij register is treated to be relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another [(2008) 13 SCC 133] wherein it has been held as under:-
Legal Reasoning
“22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the 7 parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. 28. It is trite that to render a document admissible under Section 35, 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 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]”. 19. In the case of C. Doddanarayan Reddy (Dead) by Legal Representatives and ors. Vs. C. Jayarama Reddy (Dead) by Legal Representatives and ors. [(2020) 4 SCC 659] , Hon’ble Supreme Court while considering the fact that how date of birth mentioned in school record can be considered and relied upon reiterating law laid down in the case of Birad Mal Singhvi v. Anand Purohit, [1988 Supp SCC 604], has observed in para 17, 18 and 19 as under :- “17. In Birad Mal Singhvi [ Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] , the date of birth was sought to be proved by the Principal of the school. Though, the Principal could not produce 8 the admission form in original or its copy. It was held therein that the entries contained in the school's register are relevant and admissible but have no evidentiary value for the purpose of proof of date of birth of the candidates. A vital piece of evidence was missing as no evidence was placed before the court to show on whose information the date of birth was recorded in the aforesaid document. It was held as under : (Birad Mal Singhvi case [ Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] , SCC p. 618, para 14) “ 14. … No doubt, Exts. 8. 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated, neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the 9 same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned.” 18. In Madan Mohan Singh [ Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : (2010) 3 SCC (Civ) 655] , this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, 1872 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. The Court held as under : (SCC pp. 216-17, paras 20-22) “20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the 17 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 10 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. 21. For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands believed by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/ nursing home, etc. the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [ Brij Mohan Singh v. Priya Brat Narain Sinha, AIR 1965 SC 282] , Birad Mal Singhvi v. Anand Purohit [ Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604], Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] and Satpal Singh v. State of Haryana [ Satpal Singh v. State of Haryana, (2010) 8 SCC 714 : (2010) 3 SCC (Cri) 1081] .) 22. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 11 60 and 61, etc. of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time, etc mentioned therein. (Vide Updesh Kumar v. Prithvi Singh [ Updesh Kumar v. Prithvi Singh, (2001) 2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063] and State of Punjab v. Mohinder Singh [ State of Punjab v. Mohinder Singh, (2005) 3 SCC 702] .)” 19. In a judgment in Ram Suresh Singh v. Prabhat Singh [ Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194] , it has been held that entry in the school register may not be a public document and, thus, must be proved in accordance with law. The Court held as under : (SCC p. 687, 19 para 12) “12. The condition laid down in Section 35 of the Evidence Act for proving an entry pertaining to the age of a student in a school admission register is to be considered for the purpose of determining the relevance thereof. But in this case, the said condition must be held to have been satisfied. An entry in a school register may not be a public document and, thus, must be proved in accordance with law, as has been held by this Court in Birad Mal Singhvi [ Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] but in this case the said entry has been proved. 15. In view of above, in present case, the date of issuance of the said exhibited document i.e. Article A is 26.07.2014 wherein the 12 date of birth of the prosecutrix is mentioned as 26.03.1997 whereas the date of FIR is 23.07.2014 and the same is evident from Ex.P/30. Thus, it is clear that Article A was issued after registration of FIR. It is also not explained by the prosecution that as to on what basis the date of birth of the prosecutrix was entered in Article A. Father of the prosecutrix (P.W.-2) also admitted that he has filed a document showing his daughter’s date of birth as 26.03.1997. Therefore, the Article A cannot be considered as a reliable evidence with regard to proof of age of the prosecutrix. Thus, prosecution has failed to prove this fact beyond reasonable doubt that prosecutrix was below 18 years of age on the date of incident. 16. In her examination-in-chief, prosecutrix (P.W.-1) stated that the accused took her along with him against her will. However, in para 6 of her cross-examination, she admitted that,”यह कहना(cid:5) सह(cid:7) ह(cid:8) किक मै(cid:8)ना(cid:11) पु(cid:14)लि(cid:16)स क(cid:17) बय(cid:5)ना दे(cid:11)ते(cid:11) समैय यह बते(cid:5)य(cid:5) था(cid:5) किक इसक(cid:11) ब(cid:5)दे चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) मै(cid:14)झे(cid:11) जब ब(cid:14)(cid:16)(cid:5)य(cid:5) ते(cid:17) मै(cid:27) करी(cid:7)ब किदेना(cid:5)(cid:29)क 17.07.14 क(cid:17) चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) क(cid:11) घरी गई, औरी वह(cid:5)(cid:29) पुरी चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) क# पुत्ना(cid:7) भी(cid:7) था(cid:7)। यह कहना(cid:5) सह(cid:7) ह(cid:8) किक मै(cid:27) घटना(cid:5) किदेना(cid:5)(cid:29)क क(cid:17) स(cid:5)यकिक(cid:16) स(cid:11) चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) क(cid:11) घरी स्वय(cid:29) गई था(cid:7)। यह कहना(cid:5) ग(cid:16)ते ह(cid:8) किक चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) क(cid:11) घरी ज(cid:5)करी मै(cid:27)ना(cid:11) कह(cid:5) किक मै(cid:27) यह(cid:5)(cid:29) पुरी रीह) (cid:29)ग(cid:7), मै(cid:27) यह(cid:5)(cid:29) स(cid:11) नाह* ज(cid:5)उग(cid:7)। यह कहना(cid:5) सह(cid:7) ह(cid:8) किक जब मै(cid:27) चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) क(cid:11) घरी गई था(cid:7) ते(cid:17) चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) क# पुत्ना(cid:7), चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) क(cid:11) दे(cid:17)स्ते ना(cid:5)ग(cid:11)श, व(cid:7)रूमै(cid:16) औरी चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) क(cid:5) बहना दे(cid:5)मै(cid:5)दे घना.ष ना(cid:11) मै(cid:14)झे(cid:11) अपुना(cid:11) घरी ज(cid:5)ना(cid:11) क(cid:11) लि(cid:16)ए कह(cid:5) था(cid:5), स्वते2 कह(cid:5) किक आरी(cid:17)पु(cid:7) ना(cid:11) मै(cid:14)झे(cid:11) ज(cid:5)ना(cid:11) क(cid:11) लि(cid:16)ए मैना(cid:5) किकय(cid:5) था(cid:5)। यह कहना(cid:5) सह(cid:7) ह(cid:8) किक मै(cid:27) आरी(cid:17)पु(cid:7) क(cid:11) घरी श(cid:5)मै क(cid:17) रुक# था(cid:7) औरी खा(cid:5)ना(cid:5) खा(cid:5)ई था(cid:7)।" Further, in para 7, she admitted that, " यह कहना(cid:5) सह(cid:7) ह(cid:8) किक री(cid:5)ते क(cid:17) 13 खा(cid:5)ना(cid:5) खा(cid:5)ना(cid:11) क(cid:11) ब(cid:5)दे चु(cid:14)ቐኍ(cid:7)(cid:16)(cid:5)(cid:16) औरी उसक# पुत्ना(cid:7) क(cid:11) ब(cid:7)चु झेगड़ा(cid:5) ह7आ था(cid:5)। मै(cid:14)झे(cid:11) आरी(cid:17)पु(cid:7) ना(cid:11) अपुना(cid:11) घरी मै8 किकस(cid:7) चु(cid:7)ज स(cid:11) ब(cid:5)(cid:29)धकरी नाह* रीखा(cid:5) था(cid:5)।" 17. Dr. Smt. Shashi Claudius (P.W.-4) examined the prosecutrix and opined that the prosecutrix was habitual to sexual intercourse and no definite opinion can be given with regard to recent sexual intercourse. She gave her report vide Ex.P/12 in this regard. 18. Having regard to the manner in which, the incident allegedly took place, the evidence of the prosecutrix coupled with her conduct during the incident and subsequent thereto and the fact that the medical evidence also lends no support to the prosecution case, it is clear that the prosecutrix was a consenting party to the act of the appellant. Since it has already been held she was not minor on the date of incident, no offence under Section 376 (2)(n) of IPC and Section 6 of the Act of 2012 is made out against the appellant. 19. On the basis of aforesaid discussions, the appeal is allowed. The appellant is acquitted of the charges under Section 376 (2) (n) of IPC and Section 6 of the POCSO Act, 2012. 20. The impugned judgment stands modified to the above extent. 21. The appellant is reported to be on bail, keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the 14 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 thereof shall appear before the Hon’ble Supreme Court. 22. 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. Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV Sd/- (Rajani Dubey) JUDGE