Kawardha (Kabirdham), Chhattisgarh v. State of Chhattisgarh Through Police Station Pandatarai, District
Case Details
1 CRA No. 531 of 2016 2025:CGHC:28683 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.06.30 10:37:24 +0530 CRA No. 531 of 2016 1 - Safeek Khan S/o Samsher Khan Aged About 25 Years R/o Village Charkhura, Thana Pandatarai, District Kabeerdham, Chhattisgarh., Chhattisgarh 2 - Pahalwan Khan S/o Ajeet Khan Aged About 60 Years R/o Village Charkhura, Thana Pandatarai, District Kabeerdham, Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh ... Appellants (s) versus State of Chhattisgarh Through Police Station Pandatarai, District Kabeerdham, Chhattisgarh., Chhattisgarh (Cause title is taken from Case Information System) ... Respondents For Appellants For Respondents/State : Mr. R.C.S. Deo, Panel Lawyer : Mr. Samir Singh, Advocate Hon’ble Shri Bibhu Datta Guru, Judge Order on Board 27/06/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 07/04/2016 passed in Special Case No. 146/2015 by the 2 CRA No. 531 of 2016 learned Special Judge, Kabirdham(Kawardha), whereby the appellants have been convicted and sentenced as under:- For Appellant No.1:- Conviction Sentence U/s 294 of the IPC U/s 506(B) of the IPC U/s 354 of the IPC U/s 3(1)(xi) of the SC & ST Act U/s 8 of the POCSO Act R. I. For 1 month and to pay a fine of Rs.200/-, in default of payment of fine to further undergo R.I. for one month. R. I. For 2 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 6 months. R. I. For 1 year and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 6 months. R. I. For 2 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 6 months. R. I. For 3 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 6 months. For Appellant No.2:- Conviction Sentence U/s 294 of the IPC U/s 506(B) of the IPC R. I. For 1 month and to pay a fine of Rs.200/-, in default of payment of fine to further undergo R.I. for one month. R. I. For 2 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 6 months. 3 U/s 3(1)(x) of the SC & ST Act CRA No. 531 of 2016 R. I. For 2 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 6 months. All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that the complainant lodged a report in P.S. on 21/05/2015 with the allegation that prior to 7 days of lodging of report, he came to know through the Upsarpanch in respect of certain letter relating to his daughter and appellant No.1. Thereafter, when he inquired about the said letter from his daughter, she stated that by threatening her, the appellant No.1 obtained her signature in the garden situated at Kawardha. She also stated that the appellant No.1 was trying to outrage her modesty and also embarrassed her and further he threatened her with dire consequences and asked her not to disclose the incident. When, complainant asked about the letter, appellant No.1 pressurized him to arrange marriage of his daughter with him. When the complainant refused the same, the appellant No.1 and his uncle, appellant No.2 herein entered into the house of the complainant forcefully and started abusing the family members in the name of mother and sister and also in the name of their caste; also threatened that he will place the letter, wherein the signature of the daughter of the complainant is there, publically. According to the complainant, despite knowing the fact that they belong to scheduled tribe community, the accused has committed the said act. 3. On the basis of above facts, the aforementioned offences were 4 CRA No. 531 of 2016 registered against the appellants. Spot Map (Ex.P/3) was prepared and the caste certificate of the victim was seized vide Ex. P/5. After completing the investigation, the appellants were arrested vide Ex.P-8 and 9. Subsequently after completing the investigation, a charge-sheet was filed against the appellants. 4. After framing the charges against the accused/appellants, the charges were read out and explained to the appellants, they denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution examined as many as 9 witnesses. The statement of the appellants under Section 313 of Cr.P.C. was also recorded in which they denied the material appearing against them and stated that they are innocent and the have been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellants and sentenced them as mentioned in para 1 of the judgment. Hence, this appeal. 6. Learned counsel for the appellants would submit that the appellants have been falsely implicated in the present case. He would submit that the appellants have no intention to commit the offence and the prosecution has failed to prove its case beyond
Facts
reasonable doubt. The learned trial Court without there being any material against the appellants, they have been convicted. He would submit that the prosecution story has been concocted and it is artificial just to falsely implicate appellants to give a bad shape 5 CRA No. 531 of 2016 to the rivalry. It is also clear that the ingredients of Special Act are
Legal Reasoning
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 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 7 CRA No. 531 of 2016 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 Jaiswal2, 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 "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. The Headmaster 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 8 CRA No. 531 of 2016 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.4 held as follows:- for "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; 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 therein or any appropriately represented 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 offence where abduction or rape, or similar 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." 12. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: What emerges on a cumulative "33. consideration of the aforesaid catena of judgments is as follows: 33.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 9 CRA No. 531 of 2016 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of Rules 2007 made under the JJ the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought the case is before the JJ Board when pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the 10 CRA No. 531 of 2016 age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula determine the age of a person. It has to be on the basis of the material on and on appreciation of evidence adduced by the parties in each case. record to 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible 11 CRA No. 531 of 2016 and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." not 13. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been 12 CRA No. 531 of 2016 fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: to be followed "20 Rule 12 of the JJ Rules, 2007 deals with the procedure in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 13 CRA No. 531 of 2016 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate fromthe school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three- judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference." 14. In view of above cited judgment, the prosecution has failed to prove the exact date of birth of victim/daughter of the complainant beyond reasonable doubt. 14 CRA No. 531 of 2016 15. PW-7, daughter of complainant/victim stated in her evidence that she had gone to village Joratal with her younger brother Kunj Singh to attend marriage function. After the marriage, she had gone for a walk in the garden of Kalimandir, then appellant No.1 of village Charkhura reached the garden; and took out a paper pocket and asked her to sign it. The paper was typed on the computer. When she refused to sign, appellant No.1 threatened to kill her and her family members, due to which, she put her signature on paper. She did not know what was written in that paper. Thereafter, appellant No.1 hold her hand, hugged her and started kissing her. Then she pushed him away. Thereafter, appellant No.1 asked to sit her on the motorcycle and due to fear, she sat on the motorcycle and she was dropped by appellant No.1 near her brother Dinesh's house in village Joratal and went away. She further stated that when her father came to know about all these things, she narrated the incident to her father. After that, the appellant Nos.1 and 2 started showing the papers in the village and saying that the girl wants to do court marriage. The victim in her cross-examination, in para 7, stated that she used to talk with appellant No.1, however, one Sachin asked her not to talk with appellant No.1 and for which, he also used to quarrel with her, therefore, she tried to commit suicide and even she cut her nerve of the hand also. In para 8, she stated that on the date of incident, she and her brother were in the garden, 15 CRA No. 531 of 2016 thereafter, they sat on the motorcycle of appellant No.1 and went to village Joratal. 16. Complainant(PW-2) stated that after knowing about the letter, he questioned his daughter, then his daughter gave all the information. After that, both the appellants came to his house, abused him and his family members by using caste-related abuses. They also abused his mother and sister and threatened them. He further stated that Appellant No.1 told him that he will marry his daughter and take the girl away from the house. 17. The question which arises for consideration before this Court whether the conviction of the accused/appellant under the provision of SC/ST Act is sustainable or not when there is temporary caste certificate available on record. 18. It is noteworthy to mention here that the SC/ST Act, 1989 was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act, 1989 is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offence as defined under Section 3 of the SC/ST Act, 1989. The SC/ST Act, 1989 thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community. Section 3 (1) (ध) of the 16 CRA No. 531 of 2016 SC/ST Act, 1989 or 3(1)(s) of the SC/ST Act, 1989 would read as under:- "Section 3(1)(s) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989- abuses any member of a Scheduled Caste or a Schedule Tribe by caste name in any place within the public view" 19. Thus, the basic ingredient of the offence under Section 3 (1) (ध) can be clarified as abuse of any member of Schedule Caste or a Schedule Tribe by caste name in any place within the public view. 20. Reverting to the facts of the present case, it is apparent from the statement of Complainant(PW-2) both the appellants came to his house, abused him and his family members by using caste- related abuses, abusing his mother and sister, threatening to kill them. It is noted that both the appellants have not abused related to his caste in public place, as per the prosecution, all the incident happened in the house of the complainant and there is no eyewitnesses in the present case. 21. In view of the above, it is observed that an offence under the SC/ST Act, 1989 would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment in any place within the public view. Thus, considering the aforesaid facts and circumstances, it is quite vivid that the appellants have not committed any offence in 17 CRA No. 531 of 2016 respect of caste of the victim in a public place. Therefore, it is held that no offence under SC/ST Act, 1989 is made out against the appellants. 22. Looking to the evidence of victim(PW-7), daughter of complainant stated in para 7 that she used to talk with the appellant No.1, and when one Sachin asked her not to talk with appellant No.1, she used to quarrel, therefore, she tried to commit suicide and even she cut her nerve of the hand also. In para 8, she stated that on the date of incident, she and her brother were in the garden, thereafter, they sat on the motorcycle on appellant No.1 and went to village Joratal. 23. Thus from the aforesaid testimony of the evidence, it is manifest that the victim(PW-7) used to talk with the appellant No.1 and with her own will, she sat on the motorcycle of the appellant No.1 and went to Joratal. It is also pertinent to mention here that the alleged letter, on which the signature of the victim was obtained by the appellant No.1 forcibly, on the basis of which the entire case has been built up that was not produced by the prosecution. 24. As far as the age of victim is concerned, the age of the victim has not been proved by the prosecution as no issuing authority has been examined. 25. On the basis of foregoing discussion, the prosecution has failed to prove that the appellants have committed alleged offence. Hence, the conviction under Section 323/149 of the IPC is also not sustainable. 18 CRA No. 531 of 2016 26. The appellants are acquitted from all the charges levelled against them. The appellant are reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal appeal is allowed. 27. 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/- (Bibhu Datta Guru) Judge Gowri/ Amardeep
Arguments
not attracted in this case. Learned counsel would submit that even if the entire case of the prosecution is taken as it is, no offence under the SC/ST Act is made out because the incident took place inside room. He further submits that to prove the age of victim, the prosecution has placed the marksheet of victim, but the issuing authority of marksheet has not been examined. Further, there is a delay of seven days in lodging the FIR. As such the impugned judgment of conviction and order of sentence is liable to be set aside. 7. On the other hand, learned counsel for the State opposed the submission of the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. 8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The first question arises for consideration in the present appeal is whether the age of victim/daughter of complainant was below 18 years at the time of incident. 10. To ascertain the age of victim, marksheet of victim(Article A-1) was seized vide Ex.P-4, but the person or issuing authority has not been examined by the prosecution in the present case. The evidence produced by the prosecution with respect to the age of the victim are not of that sterling quality which is sufficient to 6 CRA No. 531 of 2016 determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 11. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Supreme Court has 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. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, of birth who made the entry or who gave the date is examined.