Gaurela-Pendra-Marwahi, Chhattisgarh v. 1 - State of Chhattisgarh Through P.S. Gourela, District : Gourela-Pendra- Marwahi, Chhattisgarh
Case Details
1 / 11 2025:CGHC:8457 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 513 of 2024 1 - Meraz Khan S/o Late Sabbir Khan Aged About 21 Years R/o Village Ward No. 03 Gorakhpur, P.S. Gourela, District : Gaurela-Pendra-Marwahi, Chhattisgarh ... Appellant versus 1 - State of Chhattisgarh Through P.S. Gourela, District : Gourela-Pendra- Marwahi, Chhattisgarh ... Respondent For Appellant For State For Objector : : : Mr. Sudip Mallick, Advocate appears on behalf of Mr. Brijesh Singh, Advocate Ms. Priya Sharma, PL Mr. Vijay Shankar Mishra, Advocate (Hon’ble Shri Justice Arvind Kumar Verma) Order on Board 18/02/2025 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 06/01/2024 passed by the Special Additional Sessions Judge, Pendraroad, District Bilaspur, C.G. in Special S.T. No.05/2022 whereby the appellant has been convicted and sentenced as under:- 2 / 11 Conviction Sentence Under Section 363 of the Indian Penal Code, 1860 Under Section 366 of the Indian Penal Code, 1860 R.I. for Three Years and fine of Rs.1000/- and in default of payment of fine three months additional R.I. R.I. for Five years and fine of Rs.1000/- and in default of payment of fine three month additional R.I. Under Section 3/4 of Protection of Children from Sexual Offences Act, 2012 R.I. for Ten years and fine of Rs.2,000 and in default of payment of fine Six months additional R.I. All sentences run concurrently and fine amount separately recovered. 3. The prosecution case in brief is that the victim's father PW-3 on 08/12/2021 lodged a complaint (Ex. P/6) at police station-Gaurela alleging that his daughter /victim went to study at Narmada Public School Gaurela on 08/12/2021 at 09:30 am and after the school was over, she returned home at around 02:30 pm and at around 03:00 pm in the afternoon, she left the house informing her mother P.W.-1 that she is going to Mangali Bazar to buy household items but she did not return. Thereafter, on being enquired from the nearby relatives nothing transpired and he had suspicion that some unknown person has enticed away his minor daughter. On the basis of the said written complaint (Ex.
Facts
P/6), First Information Report (Ex. P/7) was registered by the police station-Gaurela. During the investigation, the Sub-Inspector went to the spot on 09/12/2021 and prepared the spot map of the spot (Ex. P/8). On 10/12/2021, the victim was recovered from the possession of accused Meraj Khan in front of witnesses and recovery panchnama (Ex. P/2) was prepared. The consent of the victim and her father was taken for the 3 / 11 medical examination of the victim and after the examination, the victim was handed over to her parents. 4. For medical examination of the victim and the accused, application was sent to Community Health Center Gaurela, whose report is Exhibit P-12 and Exhibit P-17 respectively. When the woman constable brought the victim's vaginal slide and blue underwear from the hospital and presented it, it was seized before witnesses as seizure sheet Exhibit P-20 and when the constable brought it from the hospital and presented the accused's underwear on the same date, it was seized before witnesses as per seizure sheet Exhibit P-21. In the case, the victim's slide and underwear seized and the accused's underwear were sent for chemical examination to the Regional Forensic Science Laboratory through the Superintendent of Police with an application of Exhibit P-23, the receipt of which is Exhibit P-24 and the report received after investigation is Exhibit P-25. An application of Exhibit P-05 was sent to Judicial Magistrate First Class Pendra Road for recording the statement of the victim under Section 164 CrPC. An application of Exhibit P-14 was sent to the Principal of Ganga Devi School, Jyotipur for providing the school's admission and dismissal register regarding the victim's date of birth. On the same date, the original admission and dismissal register of the school was produced by the Police Station-Gaurela in front of witnesses. 5. The appellant abjured his guilt during trial and claimed to be tried. The prosecution on its behalf examined as many as 13 witnesses and 4 / 11 exhibited 19 documents. The learned trial Court after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal. 6.
Legal Reasoning
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 tantamount to proof of all the contents or the correctness of date of birth stated in the documents. 8 / 11 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 9 / 11 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 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:- "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 10 / 11 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 Article 21 of the Constitution, as in that case the accused may unjustly be convicted.” 14. The prosecution has failed to produce any birth certificate of the prosecutrix and the prosecution could not conduct the ossification test of the prosecutrix to ascertain the correct age of the prosecutrix. The prosecution has mainly relied upon the Dakhilkharij Register Ex. P/16 in which the date of birth of the prosecutrix was mentioned as 06/10/2005 and the author of the Dakhilkharij Register has not been examined. It is the admitted fact that on the date of incident, the prosecutrix voluntarily joined the company of the appellant and went to Maihar, therefore, she is a consenting party and the date of birth of the prosecutrix has not been proved by the prosecution. 11 / 11 15. It is a settled proposition that when 2-3 views came to fore, the evidence which favours the accused is required to be admitted. This proposition has been been laid down in the matter of Kali Ram vs. State of H.P. reported in (1973) 2 SCC 808 and has been reiterated in the matter of Pradeep Kumar vs. State of Chhattisgarh reported in (2023) 5 SCC 350 wherein, relevant para-27 reads as under :- “27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.” 16. Applying the aforesaid well settled principles of law and for the reasons stated hereinabove, we allow the appeal and set aside the impugned judgment dated 06/01/2024. Appellant stands acquitted of the charges leveled against him. Appellant is reported to be in jail, he be set at liberty forthwith if not required to be detained in any other case. 17.
Arguments
Learned counsel for the appellant would contend that the appellant has been falsely implicated in this case. He would next contend that the prosecution has failed to prove the age of the victim and the learned trial Court has only relied upon the document Dakhilkharij Register (Ex. P/16) and the author of the same has not been examind. He would next contend that the medical report has not supported the commission of rape and found old rupture of hymen. He would next contend that as per the statement of the prosecutrix the rape was committed in the house of the sister of the appellant wherein his sister and her husband and two children were present, therefore, it shows that the prosecutrix was a consenting party. He would lastly contend that the order of the trial Court requires interference by this Court and the appellant may be acquitted of the charges and he may be released on bail. 7. Per contra, learned State counsel and learned counsel for the objector would submit that the order of the Court below is well merited which do not call for any interference by this Court. 8. I have heard learned counsel for the parties at length and perused the evidence with utmost circumspection. 9. The primary question which falls for consideration before this Court is that whether on the date of incident the prosecutrix was minor or not? 10. The prosecution has mainly relied upon the document Dakhilkharij 5 / 11 Register (Ex. P/16) which has been proved by the headmaster AP (PW- 9). 11. AP (PW-9), who is the Headmaster in the School she has deposed that she is not the author of the Dakhilkharij Register and the author of the Dakhilkharij register has not been examined by the prosecution. She further stated that the date of birth of the victim has been entered in the Dakhil Kharij register Exhibit P16 but it is has been recorded on the basis of the date of birth written in the primary school. 12. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which operates in the field of presumption and determination of age, is reproduced hereinbelow for ready and reference:- 94. Presumption and determination of age.-(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; 6 / 11 (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 13. Further in case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by 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 is examined. In paragraphs 40, 42, 43, 44 and 48 of its judgment in Alamelu (Supra), 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 7 / 11 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,who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded
Decision
In the result, the appeal is allowed. SD/- (Arvind Kumar Verma) JUDGE ashu