High Court of Chhattisgarh
Case Details
1 AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.08.01 16:34:31 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:37450 NAFR ACQA No. 522 of 2019 1 - State Of Chhattisgarh Through District- Magistrate, District- Surguja, Chhattisgarh. versus ... Appellant. 1 - Devlal S/o Pancham Ram Aged About 40 Years R/o Village- Balampur, Jangalpara, Police Station- Sitapur, District- Surguja, Chhattisgarh. (accused). ... Respondent(s) For State/Appellant :
Legal Reasoning
Shri Vivek Sharma, Addl. Advocate General. (Hon’ble Shri Justice ) Deepak Kumar Tiwari Judgment on Board 31/07/2025 1. This Acquittal Appeal has been preferred under Section 378 (1) of the Code of Criminal Procedure, 1973 against the judgment of acquittal dated 09.12.2016 passed by the Additional Sessions Judge, FTC, Surguja (Ambikapur), Chhattisgarh in Sessions Case No.62/2014 whereby, respondent/accused has been acquitted of the charge under Section 368 of IPC. 2. Prosecution case, in brief, is that juvenile in conflict with law ‘BK’ allured the minor victim girl ‘S’, aged about 15 years, on the pretext of marriage and established physical relations with her. Further case of prosecution is that present respondent knowing fully well the fact that prosecutrix was 2 kidnapped by the juvenile in conflict with law confined her in a house situated at village ‘A’. Missing report was lodged vide No.16/2014. Prosecutrix was recovered from the possession of juvenile in conflict with law on 20.05.2014 vide Ex.P/8. On the said date, Victim lodged an FIR with the police station Sitapur vide Ex.P/12 disclosing that in the morning of 25.04.2014 at about 11 am, when she was going for work, on the way, juvenile in conflict with law made an offer of marriage to her and took her to the house of respondent at village ‘A’ and respondent/accused who is relative of juvenile in conflict with law allowed them to stay in his house. Thereafter, they went to Raigarh and rented a house and lived there. On 20.05.2014, when juvenile in conflict with law along with the victim was returning to village ‘J’, the Police recovered both from bus stand, Sitapur vide Ex.P/8. In the school register (Dakhil Kharij panji), date of birth of the victim is mentioned as 07.05.1999. 3. Statement of witnesses were recorded. After completion of investigation, charge sheet was filed. 4. After committal, during trial, respondent/accused abjured his guilt and claimed to be tried. 5. In order to prove its case, prosecution examined as many as seven witnesses and exhibited 30 documents vide Ex.P/1 to Ex.P/30. 6. Learned trial Court, after evaluating the evidence, acquitted the respondent/accused of the charge mentioned in para 1 of this judgment. Hence this appeal. 7. Learned counsel for the State/appellant would submit that the trial Court has not appreciated the evidence in its proper perspective and prays to allow the appeal. 3 8. I have heard learned counsel for the appellant and perused the documents annexed with the appeal with utmost circumspection. 9. In order to prove a case under Section 368 IPC, the prosecution must prove (a) that the victim has been kidnapped or abducted; (b) that the accused has knowledge about the victim being kidnapped or abducted; (c) despite such knowledge, the accused ( not the kidnapper or abductor) concealed the victim or wrongfully confined him or her. 10.In the instant case, case of the prosecution is that at the time of incident, victim (PW-5) was minor and below 18 years of age and she was kidnapped by the juvenile in conflict with law. 11.The first question which arises before this Court is whether on the date of incident, the prosecution has been able to prove that the prosecutrix was minor. In this regard, prosecution has filed Dakhil Kharij register vide Ex.P/29 (c) wherein, date of birth of the victim has been recorded as 07.05.1999. 12. Kunjal Ekka (PW-7), Head Master of the school, clearly admitted in her cross-examination, that she is not the author of the register and she further admits that at the time of admission, no declaration form with regard to date of birth has been obtained from the parents. She further admits that in the village, date of birth is normally recorded in the school register by the villagers on the basis of assumption or presumption. When a query was put to counsel for the State, who after going through the impugned judgment submits that learned trial Court has not discussed this part of the evidence which is crucial for determination of age and for proving such offence. 13.Father of the victim (PW-4) has also not deposed anything to the effect 4 that he had got recorded the date of birth in the school on the basis of birth certificate or any other clinching or reliable evidence and therefore, oral statement of the parent in this regard is not sufÏcient. 14. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana 1 , has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit 2 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 of the same, it 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 (supra) had observed that the date of birth in the register of a 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. “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 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 5 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 prosecutrix in the form of the school register was not sufÏcient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 15.In view of the aforesaid, this Court is of the view that prosecution has miserably failed to prove the age of the victim on the date of incident as there is no such clinching or legally admissible evidence brought on record by it to prove that victim was minor on the date of incident. 16.Furthermore, the victim had visited several places with juvenile in conflict with law and she has also admitted that she is not aware as to in whose house they had stayed. 17.Father of the victim (PW-4) also admits, in the cross-examination, that subsequent to 15-20 days from the day his daughter went missing, when he started searching her, he had not made any enquiry from the respondent and he is also not aware as to whether at the said time, respondent was also in village ‘B’. 18. Prior to the present incident, juvenile in conflict with law according to their custom, took minor prosecutrix to ‘Dhuku’ and the present respondent who is relative of juvenile in conflict with law sent her back to her parents’ house. Hence from this evidence, it is explicit that there is no malafide or bad intention on the part of respondent/accused to confine the victim. 6 19.In view of the aforesaid, this Court is of the opinion that finding recorded by the trial Court concerning acquittal of respondent/accused is just and proper, therefore, no case is made out for interference in the impugned judgment. 20.Resultantly, this Appeal fails and is hereby dismissed. Judge (Deepak Kumar Tiwari) Sd/- Avinash