Criminal Case No. 16 of 2019 · Nafr High Court
Case Details
1 2025:CGHC:11047-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 892 of 2021 Gopichand Sahu S/o Sahdevram Sahu Aged About 23 Years R/o Koliyari, Police Station Bhakhara, District Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh versus ... Appellant State Of Chhattisgarh Through Station House Officer, Police Station Kurud, District Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Anil Kumar Gulati, Advocate For Respondent/State : Mr. Nitansh Kumar Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Per Ramesh Sinha, Chief Justice Judgment on Board 06/03/2025 1. The present criminal appeal has been filed by the appellant under section 374(2) of the Code of Criminal Procedure, 1973, against impugned judgment of conviction and sentence dated 22-07-2021, Digitally signed by VEDPRAKASH DEWANGAN 2 passed by learned Special Judge (POCSO) (FTC), Dhamtari, in Special Criminal Case No. 16 of 2019, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence U/s. 363 of IPC U/s. 366 of IPC R.I. for 01 year and fine of Rs. 500/-, in default of payment of fine further S.I. for 02 months. R.I. for 03 years and fine of Rs. 500/-, in default of payment of fine further S.I. for 02 months. U/s. 376(2) of IPC and Section 6 of POCSO Act. R.I. for 20 years and fine of Rs. 5000/-, in default of payment of fine further S.I. for 06 months. 2. The brief facts of the case are that the father of the victim/PW-4, lodged a written complaint (exhibit P-5) on 31-03-2019, to the police that his minor daughter, aged about 17 years, was being kidnapped by the appellant and committed rape upon her since 18-02-2019. Due to his social status, he could not lodge report earlier, but his daughter has met with an accident and suffered fractures to her waist bone and she is taking treatment. Therefore, he is lodging the report. On the written complaint made by the father of the victim, the FIR (exhibit P-6) has been registered against the appellant for the offence under Sections 363, 366, 376 of IPC and Sections 4 and 6 of POCSO Act. 3. The victim was admitted in Dr. B. R. Ambedkar Hospital, Raipur for her accidental injuries and at the time of proposed surgery of her spine, when she underwent her blood test, it comes into knowledge 3 that she was carrying pregnancy. Thereafter, a report from Dr. B. R. Ambedkar Hospital, Raipur was obtained. She was medically examined by Dr. Pratibha Tiwari, who gave her report (exhibit P-4). After her medical examination, she opined that multiple tear present on hymen and possibility of sexual contact cannot be ruled out. She was also advised for UPT, HIV, HbS-Ag, VDRL, USG test and also
Facts
referred for X-ray examination for her age confirmation. Slides of her vaginal smear, vaginal swab, urethral swab and anal swab were prepared, sealed and handed over to police for its chemical examination. The underwear of the victim was seized vide seizure memo (exhibit P-1). 4. With respect to the date of birth and age of the victim, the school register and academic register has been seized vide seizure memo (exhibit P-2) from Govt. Naveen Primary School, Nawagaon, Thuha. Spot map (exhibit P-8) was prepared by the police and Exhibit P-23 was prepared by Patwari. The appellant was arrested on 01.04.2019 and he too was sent for his medical examination to Government Hospital, Kurud where he was medically examined by PW-7/Dr. J.P. Diwan, who gave his report (exhibit P-14). As per the medical report of the appellant, he was found capable to perform sexual intercourse. 5. The vaginal slides, urethral slides and anal slides of the victim, underwear of the victim and the underwear of the appellant were sent for its chemical examination to State FSL Raipur from where a 4 report (exhibit P-30) was received and no semen or sperm were found on the sent articles. Statement of the witnesses under Section 161 of CRPC and statement of the victim under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed before the learned trial Court for the offence under Sections 363, 366 and 376 of IPC and Sections 4 and 6 of POCSO Act. 6. The learned trial Court has framed charge against the appellant for the offence of Sections 363, 366 and 376(2) of IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 7. In order to prove the charge against the appellant, the prosecution has examined as many as 16 witnesses. Statement of the appellant under section 313 of CRPC has also been recorded in which he denied the circumstances, appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 8. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgement. Hence this appeal. 9.
Legal Reasoning
in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, 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 9 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 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 is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". 10 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 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 11 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." 17. 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: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 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 12 xxxx 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 the JJ Rules 2007 made under the 33 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 before the JJ Board when the case is 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 age of a person has to be made on the basis of evidence scrutinised and accepted 13 only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hyper. technical 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 14 public documents, such as matriculation certificate, could be accepted by the Court or the 33 Board provided such public document is credible 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 not 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." 18. 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 33 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 15 concerned authority, l.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. 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 the description 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: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed 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 16 inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (1) 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." 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 17 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 from the school first attended, could be obtained. In Section 94(2)(1) 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." 19. Reverting to the facts of the present case, the victim/PW-2 has stated that her date of birth is 11-07-2001. In cross examination, she stated that she is having two elder sisters, who have got married, but when her elder sister had got married, she did not know. Her middle sister has got married in the month of December 2018. PW-1 who is the mother of the victim has stated that the date of birth of her daughter is 11-07-2001. She is having three daughters. She has got married in the year 1997. She admitted that she did not know as to who had gone with the Kotwar to register the birth of her daughter 18 and she herself had not gone there. She admitted that she has not got prepared the birth certificate of the victim. Her husband had gone to school for admission of the victim and she disclosed the date of birth of the victim on the basis of her school mark sheet. She is working as Anganbadi Karyakarta. 20. PW-4 is the father of the victim, who stated that his daughter was aged about 17 years at the time of incident, but he did not disclose her date of birth. In cross examination, he stated that he could not remember as to whether he has got registered the birth of his children with the Kotwari register or not. He himself had gone to the school for admission of the victim. 21. From all these evidences, except the oral evidence, there is no documentary evidence with respect to the date of birth of the victim. Despite having referred for her X-ray examination, the same could not be done by the prosecution to determine the age of the victim. The school record has not been proved in accordance with law to determine the age of the victim. The mother of the victim had stated that she disclosed the date of birth of the victim on the basis of her school mark sheet. Her father had not disclosed any date of her birth. In such type of evidence, it cannot be said that the prosecution has proved the age of the victim for producing cogent evidence for the same, yet the learned trial Court has held her minor. 22. So far as the offence of kidnapping or rape are concerned, we again examine the evidence of the victim/PW-2. She stated in her 19 evidence that she knew the appellant since she was studying in class 9th and she used to talk to him regularly. On 18.02.2019, he came to her house at about 11:00-11:30 Hrs in the night and allured her that he will marry with her. He took her with him to his house and then she came to know that the appellant was already married. When she requested him to let her go back to her parents' house, she was being detained by his family members. The appellant kept her with him for about 1 ½ month and made physical relation with her regularly. Thereafter, the appellant and his parents left her to Child Welfare Centre, Dhamtari and thereafter, she was being sent to Child Welfare Home, Raipur. Due to her stress, she tried to commit suicide by jumping from the terrace, because she was sexually exploited by the appellant for about 1 ½ month, from there, she was admitted to Mekahara Hospital, Raipur and her parents were called from there. When her parents came, she disclosed the entire incident to them and then the report has been lodged. In cross-examination, she stated that she was being allured by the appellant and despite her protest, the appellant took her with him. After going to his house, she came to know that the appellant has already married but she was being detained by his family members. This fact has been disclosed in her police statement (exhibit D-1) and if it is not there, she could not tell the reason. She further stated that she used to normally talk with the appellant but not having any love affair with him. She admitted that while going with the appellant, she has not raised any alarm and has not called 20 to anyone for help. She had gone with the appellant on his motorcycle. During stay in the house of the appellant, the appellant usually goes to his work and she used to engage in domestic work. The house of the appellant is adjoining to the houses of others and their neighbors are often used to visit their house. She further admitted that her house was having one main door, which has usually been locked in the night, but she did not know as to how the appellant entered into her house. She further admitted that no force has been used by the appellant while she was being taken by him. She admitted that when she had gone to CWC, her parents and the appellant refused to keep her with them and thereafter she was being sent to Child Welfare Home. Her parents have also refused to keep her with them because of the reason that she had gone with the appellant and she did not obey her parents wish. 23. From the evidence of PW-2, it comes that though the appellant has taken the plea that the victim was having love affair with him and she herself had gone with him on her own will and engaged in making consensual physical relation but from her evidence it is quite apparent that she had the normal talk with the appellant and denied the love affair with him. From the evidence it also comes that she was unaware about the fact that the appellant has already married and it is only come to her knowledge when she reached to the house of the appellant. Despite her request, the family members of 21 the appellant detained her there and thereafter she stayed there for about 1 ½ month. During her stay there, the appellant made physical relation with her repeatedly and after about 1 ½ month, she was being left by the appellant to Child Welfare Centre and refused to keep her with him. 24. When the appellant has already married, the love affair was denied by the victim and she was detained by the appellant and his family member in his house for about 1 ½ month and the appellant has made physical relation with her regularly and ultimately left her for no reason and sent to Child Welfare Centre clearly demonstrate that the victim was sexually exploited by the appellant. Initially she was allured by the appellant that he will marry with her and when she had gone to the house of the appellant she came to know that the appellant is already married and then she started protesting. In such a situation, it cannot be said that the victim was consented in eloping with the appellant and making physical relation with him. Rather it is quite apparent that it is a consent obtained on misrepresentation that too by suppressing the fact that the appellant has already married. 25. PW-1, mother of the victim has stated that the victim was being kidnapped by the appellant on 18.02.2019 and kept her with him. Due to their status in the society and community they could not lodge the report. Her daughter was being taken on 28.02.2019 to Child Welfare Centre, Dhamtari. From where she was being sent to 22 Child Welfare Home, Raipur, where she attempted to commit suicide by jumping from the terrace of the Child Welfare Home. She was immediately shifted to Mekahara Hospital, Raipur and taking her treatment. The victim disclosed her that she was sexually exploited by the appellant and he took her with him on the pretext of marriage. 26. PW-4 is the father of the victim has also made similar statement as the PW-1 has stated. He too has stated that when the victim could not be found in his house and went missing, he has not lodged any missing before due to his position in the society. After about 1 ½ month, he received a telephonic call from CWC Dhamtari, then he came to know that the appellant left his daughter there. He too has refused to take her back and on the next day, he received information from Child Welfare Home Raipur that she met with an accident and admitted in the hospital. The victim has disclosed him that she was being sexually exploited by the appellant by taking her on the pretext of marriage. Thereafter, he lodged the report to the police. 27. PW-3, Dr. Pratibha Tiwari who medically examined the victim when she was being taken to hospital for her treatment. She stated that at the time of her examination, the victim disclosed that the appellant has kidnapped her on the pretext of marriage, sexually exploited her and ultimately left her at CWC Dhamtari, from where she was being sent to Child Welfare Home Raipur, where she attempted to commit 23 suicide. While medically examining the victim, she found her pregnancy test positive and gave report (exhibit P-4). Nothing in her cross-examination, which makes her evidence doubtful. She has not been cross-examined on the point that the victim did not carry any pregnancy. 28. PW-6, Dr. U.S. Navaratna, who medically examined the victim at Civil Hospital Kurud, approved the MLC report (exhibit P-13). He stated that since there was no lady doctor available at Civil Hospital, Kurud, the victim was referred to Medical College Hospital, Raipur for her medical examination. 29. PW-10, Dr. Kedar Agrawal who is an Orthopedic, has treated the victim and proved her bed head ticket (exhibit P-19). He has treated the victim for her injury to spine for which he done its surgery. From this evidence, though it reflects that the victim was sexually exploited by the appellant after taking her with him on the pretext of marriage, but from the evidence, the ingredients of the offence under Sections 363 and 366 of IPC is not satisfied as the victim herself has stated that she has not made any alarm and has not protested when she was going with the appellant. Though she stated that the appellant allured her that he will marry with her, but when she reached to the house of the appellant, she came to know that the appellant is already married, then she could have flee from that place or she could have raised alarm at that time. But there is no evidence that she protested there or tried to flee from his house. 24 Despite having opportunity to flee from the house of the appellant, she did not do so and stayed there for about 1 ½ month. When the appellant used to go to his work, she engaged in her domestic work, which also supported the fact that she on her own will residing there. When she was not found to be minor, there is no offence of any kidnapping or abducting the victim. 30. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has held that: "9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution 25 establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". 31. From the conduct of the victim and in view of the aforesaid judgment of S. Vardarajan (supra), it cannot be said that the appellant has kidnapped the victim and procured the minor girl, as the victim is not found to be minor and no offence of either kidnapping or procuring a minor girl is made out against the appellant. 32. Recently in the matter of Tilaku alias Tilak Singh Vs. the State of Uttrakhand, the judgment passed in the matter of S. Varadarajan (supra) has been relied upon by the Hon’ble Supreme Court in CRA No. 183 of 2014 decided on 06-02-2025. 26 33. Since the victim was found to be major on the date of the accident and she on her own will had gone to the house of the appellant and stayed there for about 1 ½ month on no offence of either kidnapping or abducting the victim is found proved against the appellant, but the offence of Section 376(1) of IPC is found proved against the appellant, as he has sexually exploited the victim for about 1 ½ month and kept under assurance that he will marry her. It also proved that the appellant had already married, but he kept the victim under misconception of fact that he will marry her and made physical relation with the victim by which she conceived pregnancy and ultimately left her to Child Welfare Centre, Dhamtari, which amounts to the offence of rape. Since the victim did not find to be minor, no offence under Section 376(2) of IPC or Section 6 of POCSO Act are made out against the appellant, but the offence of the appellant comes under the offence of Section 376(1) of IPC. 34. In view of the foregoing discussions, the conviction and sentence of the appellant for the offence under Sections 363, 366 and 376(2) of IPC and Section 6 of POCSO Act are set aside. Instead thereof, the appellant is convicted for the offence under Section 376(1) of IPC and sentenced for R.I. for 10 years with fine of Rs. 5000/-, in default of payment of fine, additional S.I. for 6 months. 35. With this modification/alteration, the appeal filed by the appellant is partly allowed. 27 36. The appellant is reported to be in jail since 01.04.2019. He shall serve the entire sentence as awarded by this Court. He is entitled for set-of of his undergone period during the trial as well as during the appeal. 37. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 38. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved
Arguments
Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant in 5 the offence in question. There is no legally admissible document with respect to the age and date of birth of the victim. The school record produced by the prosecution has not been proved in accordance with law. The author of the school record has not been examined and the basis on which the entries have been made in it has also not been produced by the prosecution. In absence of any cogent and clenching evidence with respect to the age of the victim, she cannot be treated as minor. He would further submit that the victim was having love affair with the appellant. He would also submit that the report has been lodged by the father of the victim after lapse of a long time. The victim was having love affair with the appellant and while making physical relation with the appellant, she has not raised any alarm and had not protested. She herself eloped with him and engaged in making consensual physical relation and it is only when she conceived pregnancy, she tried to commit suicide by jumping from the terrace of her house for which she was admitted in the hospital. The entire conduct of the victim does not come under the definition of kidnapping or rape and therefore, the appellant is entitled for acquittal. 10. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the evidence of prosecution witnesses are fully reliable. The age of the victim has been proved by producing school records which is the admissible piece of evidence and the same has been proved by 6 PW-5, who is the Headmaster of the school. As per the school record, the victim was minor on the date of incident and she was taken by the appellant and kept away from her lawful guardianship. By the act of the appellant, the victim conceived pregnancy. Since the victim was found to be minor, she cannot be consented in making physical relation with the appellant yet the appellant has made physical relation with her which amounts to offence of rape. 11. The learned trial Court, after considering the entire facts and circumstances as well as evidence of the case, holds the appellant guilty for the alleged offences, which is absolutely justified and needs no interference. 12. We have heard learned counsel for the parties and perused the record with utmost circumspection. 13. The first and foremost question for consideration would be the age of the victim as to whether she was minor on the date of incident or not? 14. The prosecution has mainly relied upon the school register (exhibit P-10C) and affidavit register (exhibit P-11C) which is sought to be proved by PW-5, who is the Headmaster of the school. He stated in his evidence that he is posted as Headmaster at Government Primary School, Nawagaon, Thuha since 24.02.2010. The police has seized the school register and affidavit register from him vide seizure memo (exhibit P-2). After retaining its attested true copy (exhibit P-10C) and (exhibit P-11C), both the registers were returned 7 back to the school which he brought today with him. As per the school register and affidavit register, the date of birth of the victim is mentioned as 11-07-2001. In cross examination, he admitted that in the affidavit register, there shall be the signature of the parents of the child. But in the affidavit register (exhibit P-11C), the signature of other person is there. He voluntarily stated that it was endorsed by mistake. He also admitted that just below the entries made with respect to the victim, the same mistake was also committed. He further admitted that he has not made entries in the said school register (exhibit P-10C) and affidavit register (exhibit P-11C). He also admitted that who has made entries in the said registers, he did not know. Since there is no signature of the parents of the victim in the above said two registers, he could not say as to whether her parents had come to school for her admission or not. He further admitted that on what basis the date of birth of the victim is recorded in the said school registers, he did not tell. 15. From the evidence of this witness, it is quite apparent that he is not the author of the school register and the basis on which the entries have been made has also not been produced. Further, there is a mistake detected in its remark column. 16. The admissibility and evidentiary value of the school register has been considered by the Hon’ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of 8 Police, 2011(2) SCC 385. In Para 40, 42, 43, 44 and 48 of its judgment, the Hon’ble 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, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded