Anil Singh @ Golu, S/o Mohan Singh Thakur, aged about 26 years, R/o Village v. State of Chhattisgarh, Through P.S. Marwahi, District Bilaspur
Case Details
1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.03.07 10:25:53 +0530 2025:CGHC:10428 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 745 of 2007 Anil Singh @ Golu, S/o Mohan Singh Thakur, aged about 26 years, R/o Village Seoni, P.S. Marwahi, District Bilaspur (C.G.) ... Appellant versus State of Chhattisgarh, Through P.S. Marwahi, District Bilaspur (C.G.) ... Respondent For Appellant : Mr. Ramkumar Tiwari, Advocate For Respondent/State : Mr. HAPS Bhatia, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (03.03.2025) 1. This criminal appeal filed by the appellant under Section 374 of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 14-08-2007, passed by learned Additional Sessions Judge (FTC), Pendra Road, in Sessions Trial No.87/2005, whereby the appellant has 2 been convicted as under:- Conviction Sentence & Fine Under Sections 363, R.I. for 3 years and fine of IPC Rs.1,000/-, in default thereof, 1 month RI. Under Sections 366, R.I. for 5 years and fine of IPC Rs.3,000/-, in default thereof, 2 months RI. Under Sections 376, R.I. for 7 years and fine of IPC Rs.5,000/-, in default thereof, 6 months RI. 2. As per prosecution story, the prosecutrix lived with her parents in village Seoni, within the jurisdiction of Marwahi police station, and pursued her education from Class 1 to Class 12 in the same village. When she was in Class 9, the appellant began luring her with promises of making her his wife and frequently visited her house. Later, the appellant persuaded her by promising marriage at a temple and called her outside the house on the night of 04-08-2004 at 3:00 AM. The prosecutrix left her house without informing her parents and sisters. The appellant picked her up on a motorcycle from in front of her house and took her to Bilaspur, where they stayed in a lodge for a few days. During this time, Rajesh (PW-10) also joined them in Bilaspur. Subsequently, all three of them traveled to Raipur on the same motorcycle. Rajesh later returned from Raipur, while the appellant took the prosecutrix to Dongargarh Temple, where he performed marriage with her. After that, 3 the appellant took the prosecutrix to Anjori in District Durg, rented a house, purchased household items, and started living there. During their stay, the appellant commits sexual intercourse with the prosecutrix everyday. Later, on 16-09-2004, the appellant took the prosecutrix to his maternal uncle’s village, Kodia. Upon receiving information, the police brought the prosecutrix and the appellant to the Marwahi police station. Meanwhile, on the morning of 04-08-2004, upon discovering that the prosecutrix had left home, her father filed a missing person complaint at the Marwahi police station. A search for the prosecutrix continued, and after receiving information from the Kunda police station, the Marwahi police, along with the prosecutrix’s father and other villagers, reached village Kodia and brought both the prosecutrix and the appellant to the police station. Thereafter, medical examination of the prosecutrix was conducted. During the investigation, the prosecutrix’s date of birth was verified by seizing the Dakhil Kharij register of Ranjit Saraswati Shishu Mandir, which
Legal Reasoning
confirmed her date of birth as 05-01-1987. Thus, on the date of the incident, 04-08-2004, the prosecutrix was below 18 years of age. Necessary evidence was collected from both the prosecutrix and the appellant, and witness statements were recorded. Subsequently, after completing the entire investigation, a charge sheet against the appellant was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 16 witnesses, exhibited 25 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. After hearing the parties, vide impugned judgment dated 4 14.08.2007, the learned Trial Court has convicted and sentenced the appellant as mentioned in paragraph 1 of this judgment. Hence, this appeal.
Legal Reasoning
5. Learned counsel appearing for the appellant submits that the date of birth of the prosecutrix (PW-1) is not proved. No conclusive evidence regarding her age has been produced by the prosecution. To verify her age, her ossification test was also not conducted. Thus, as date of birth of the prosecutrix (PW-1) was not proved, the prosecution has failed to prove that the prosecutrix was minor at the time of the incident. He further submits that the prosecutrix was a consenting party though prosecution has failed to prove its case beyond doubt, the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence. 6. On the other hand, the learned counsel for the State submitted that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. Heard learned counsel for the parties and perused the record with utmost circumspection. 8. It is clear from the prosecution evidence that the prosecutrix (PW-1) stayed with the appellant outside the house from 04/08/2004 to 18/09/2004. On 18/09/2004, Dr. Sheela Saha (PW-6) conducted her medical examination and submitted a report (Exhibit P-10). According to which she was considered to be used to sexual intercourse and no 5 definite opinion was given in this regard that she was raped forcefully. The FIR of the incident was registered on 18/09/2004 after the recovery of the prosecutrix (PW-1) from village Kaudia. Consenting party 9. The prosecutrix (PW-1) in her court statement has supported the prosecution case but has admitted that the appellant took her on a motor cycle first to Bilaspur then to Raipur then to Rajnandgaon then to Shikari Mohka then to Dongargarh temple then to Anjori and then to Kaudia. They stayed in a lodge in Bilaspur, Raipur and the appellant's friend Rajesh (PW-10) also stayed with them. Rajesh (PW- 10) has admitted the fact that the prosecutrix (PW-1) and the appellant said that they were going to Dongargarh and on enquiry, the prosecutrix (PW-1) said that she had come with the appellant of her own free will. In cross-examination Rajesh (PW-10) has stated that the prosecutrix (PW-1) had also said that she had attained adulthood and had come to get married of her own free will. 10.Thus, the prosecutrix (PW-1) who had been going with the appellant on a motor cycle to various places including public places, lodges, residence of acquaintances etc. for one and a half months, has been travelling with the appellant on a motorbike. She has also admitted that the appellant had filled her hair with sindoor in the temple of Dongargarh and they had stayed in a rented room in Anjora for about 20-22 days. She has also admitted to writing the letter of Exhibit D-1. Although she has stated that she had written this letter under the pressure of the appellant, but keeping in view the contradiction in her entire Court statement and the Police statement, it does not appear that 6 she had written the letter of Exhibit D-1 under the pressure of the appellant. She has also stated that the appellant's maternal uncle kept her as his daughter-in-law. After that they had gone to village Kaudia of Kawardha district. Lastly, she has also admitted that she was living with the appellant and used to cook food which both of them used to eat and the appellant also took her to the market on his motor cycle to buy goods. Thus, the prosecutrix (PW-1) has been with the appellant for a long time and it does not appear that she ever protested or complained. Father (PW-2) of the prosecutrix (PW-1) has also admitted in cross-examination that after the prosecutrix left, he came to know that the appellant had eloped with her, yet the father has not given any explanation as to why there was a delay of one and a half months in reporting the matter to the police, which also confirms the fact that the prosecutrix (PW-1) was a consenting party. 11.Now the offence under Sections 363, 366 & 376 of IPC will be made out against the appellant only if the victim is found to be under 16 or 18 years of age at the time of the alleged incident i.e. 04.08.2004. Age Determination 12.The prosecutrix (PW-1) has not clarified her date of birth in the Court statement. Her father (PW-2) has stated the date of birth of the prosecutrix (PW-1) as 05/01/1987 and in this regard the police has seized Dakhil Kharij register of the school of the prosecutrix and produced it vide Exhibit P-8 and the birth certificate prepared by the teacher on the basis of that register vide Exhibit P-9. According to which 7 the date of birth of the prosecutrix is 05/01/1987 and on calculation from that date it is reflected that on the date of incident-04/08/2004, the age of the prosecutrix was about 17 years and 07 months. 13.The incident is of the year 2004. Before the amendment of the Indian Penal Code in 2013, Section 375 IPC defined rape as follows: Against her will. “375. Rape. A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Secondly- Without her consent. Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. With her consent, when, at the time of Fifthly- giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 14.Since, according to the prosecution evidence itself, the age of the prosecutrix was more than 16 years at the time of the 8 incident and she was also the consenting party, therefore the offence under section 376 IPC is not made out and hence the conviction under section 376 IPC is not found to be justified. 15.In such a situation, it would be appropriate to evaluate the entry of the date of birth recorded in the Dakhil Kharij register of the school. Because according to the appellant's friend Rajesh (PW-10), the prosecutrix (PW-1) had told him that she had attained adulthood and was going to get married of her own free will. Therefore, it becomes necessary to evaluate the basis and source of the date of birth recorded in the school's Dakhil Kharij register. 16. The Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder :- “14. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not 9 have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. “14. …The date of birth mentioned in the scholar’s 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. 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.” 15. In our opinion, the proof submitted by the prosecution with regard to the age of the victim in the form of the school register was not sufÏcient to arrive at a finding that the victim was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the victim. It was neither safe nor fair to convict the appellant, particularly when the age of the victim was such a crucial factor in the case.” 10 17. Hon’ble the Apex Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has held that:- “the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 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 victim in the absence of the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case 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.” 18. Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held that:- “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 ofÏcial 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 ofÏcial 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 11 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.” 19. 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:- “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 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 ofÏcial 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 ofÏcial 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 12 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 v. Anand Purohit (1997) 4 SCC 24).” 20. The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:- “26.Bishan, PW8, the father of the victim has also not been able to give correct date of birth of the victim. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. 34. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.” 21. On the basis of the entry in the school's Dakhil Kharij register (Exhibit P-8), the certificate (Exhibit P-9) has been issued. In order to verify this, Rajendra Kumar Mishra (PW- 5), a teacher of Saraswati Shishu Mandir, Seoni, has been 13 examined. He has stated that he is the principal and according to the Dakhil Kharij register (Exhibit P-8), the date of birth of the prosecutrix (PW-1) is 05/01/1987 (05/01/1997 was mentioned due to clerical error). He has admitted in cross-examination that the said entry is not in his handwriting but in the handwriting of some other teacher. Thus, it is clear that the entry of the date of birth in the Dakhil Kharij register (Exhibit P-8) is not an entry made by this teacher. The Principal Rajendra Kumar Mishra (PW-5) has also admitted that in his school admission is done on the basis of transfer certificate of class-V and the prosecutrix (PW-1) had studied in his school from class I to V but, he further admitted that in Dakhil Kharij register (Exhibit P-8), there is no entry of the time of admission of the prosecutrix in class I and the certificate (Exhibit P-9) has also been issued on the basis of Dakhil Kharij register of class VI. Thus, the entry which is said to have been made in another register at the time of admission in class I in the primary school has not been produced and on what basis the date of birth has been entered in the said register as 05/01/1987 has neither been clarified by the Principal Rajendra Kumar Mishra (PW- 5) nor has he produced any other certificate which can prove that the said date of birth has been entered in the school on the basis of any primary date of birth certificate. 22. In such a situation, the entry of the date of birth in the name of the prosecutrix in the Dakhil Kharij register (Exhibit P-8) is not proved beyond doubt as its source is not clear. Thus, it is also not proved beyond doubt that the age of the prosecutrix was less than 18 years on the alleged incident date i.e. 04/08/2004. Since the prosecutrix was a consenting party, the conviction of the appellant is not 14 found to be justified. Hence, his conviction is not found to be sustainable. 23. Accordingly, the appeal is allowed. The impugned judgment is set aside and the appellant is acquitted. 24. It is reported that the Appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham