Bemetara, Chhattisgarh v. State of Chhattisgarh, Through Police Station Parpodi, District
Case Details
Digitally signed by AMIT PATEL 1 2025:CGHC:39516 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 640 of 2015 Sevan Kumar Chandel, S/o Rupdas Chandel, Aged About 30 Years, R/o Village Tiriyabhath, Police Station- Parpodi, District- Bemetara, Chhattisgarh ... Appellant versus State of Chhattisgarh, Through Police Station Parpodi, District- Bemetara, Chhattisgarh ... Respondent/State _____________________________________________________________ For Appellant : Mr. Siddharth Pandey, Advocate. For State : Mr. Afroz Khan, PL _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey Judgment on Board 07.08.2025 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 31.03.2015 passed by learned Additional Sessions Judge, Bemetara, District- Bemetara (C.G.) in Sessions Trial No. 73/2014, wherein the said Court convicted the appellant and sentenced him as under :- Conviction Sentence Under Section 450 of IPC R.I. for 05 years and fine of Rs. 2 2,000/-, in default of payment of fine, to undergo additional R.I. for two months. Under Section 376 of IPC R.I. for 10 years and fine of Rs. 2,000/-, in default of payment of fine, to undergo additional R.I. for two months. Under Section 6 of R.I. for 10 years and fine of Rs. Protection of Children from 2,000/-, in default of payment of fine, Sexual Offences Act, 2012 to undergo additional R.I. for two months. (All the sentences are directed to run concurrently) 2. The case of the prosecution, as unfolded from the impugned judgment and the record of the case is that the F.I.R. lodged on 29.07.2014 by maternal uncle of the prosecutrix (PW-3), against the appellant that he was informed by his sister that her daughter/prosecutrix become pregnant and upon enquiry from the prosecutrix, she disclosed the fact that for last one year, the appellant frequently visited her house as he is well aware of the fact that the prosecutrix resides alone and he took advantage of the same and committed forcible sexual intercourse by
Legal Reasoning
threatening her to death. Vide Ex.P/1, the FIR registered by Investigating Officer- C. L. Uike (PW-10) in Crime No. 56/2014 for offence punishable under Sections 376, 506 (B) and 4, 6 of Protection of Children from Sexual Offences Act, 2012. During the investigation, Investigating Officer (PW-10) prepared the spot map according to the witnesses vide Ex. P/13. Thereafter, the vaginal slide of the 3 complainant/prosecutrix was prepared. After obtaining the consent from mother and maternal uncle of the prosecutrix, her medical examination was conducted by Dr. Kunti Thakur (PW-4) and gave her report vide Ex. P/5. Spot map was prepared by Patwari vide Ex. P/7 and to ascertain the age of the prosecutrix. As per Article A-1, birth certificate was seized vide Ex. P/3, which was produced by the complainant. Medical examination of the accused person/appellant was also conducted and the report is Ex. P/20. Statements of the witnesses were recorded and the appellant was arrested as per Ex. P/14, the seized articles were sent for FSL for its chemical examination and the FSL report is Ex. P/16. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 450, 506-II and 376 and Section 6 of Protection of Children from Sexual Offences Act, 2012. The appellants/accused having abjured guilt was subjected to trial. 3. In order to establish the charges against the accused persons, the prosecution has examined as many as 11 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence that he has been falsely implicated in this case. However, two witness examined by him in his defence. 4. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record thereby 4 convicted and sentenced the accused/appellant as mentioned in inaugural para of this judgment. Hence, this present appeal. 5. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant
Decision
submits that the impugned judgment is contrary to the law, facts and circumstances of the case and it is not proved by the prosecution that the prosecutrix has become pregnant due to sexual intercourse alleged to be committed by the accused. In MLC report, no signs of forcible sexual intercourse were found and the victim was found habituated to sexual intercourse. The age of the victim has not been proved in accordance with the law and the birth certificate Ex. P/3 was obtained one day prior to lodge the FIR. He next submits that the source of information on which the date of birth of the prosecutrix was recorded has not been established. There is no other evidence on record which proves the date of birth of the prosecutrix and a copy of the birth certificate was produced by the prosecution without examining its author. The photocopy of the birth certificate has not been established to be true copy of the original, also the mother PW-2 of the prosecutrix has not stated anything regarding the age of the victim. It has been further argued by learned counsel for the appellant that the prosecutrix has stated that she did not lodge the report rather her maternal uncle PW-3 lodged the report nor she ever stated about the incident to him and the prosecutrix stated that many boys used to come to her house and she never resisted to or objected to the sexual relations between them. So, prosecution has utterly failed to prove its case beyond reasonable doubt and findings recorded by learned trial court are highly perverse. So, the impugned judgment is liable to be set aside. 5 6. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellant. So, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is evident from record of learned learned trial Court that it framed charges for offence punishable under Sections 450, 506-II, 376 of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 against the present appellant and after appreciation of oral and documentary evidence, learned trial Court convicted the appellant for offence under Sections 450 & 376 of IPC and Protection of Children from Sexual Offences Act, 2012 and sentenced is mentioned in inaugural para of this judgment. Hence, this present appeal. 9. As per the prosecution, the age of the prosecutrix is aged about 17 years 04 months at the time of incident. The prosecution relied upon the birth certificate (Article-1). 10. Sukhchand PW-3, maternal uncle of the prosecutrix stated that police seized the birth certificate of his niece (prosecutrix) as Article -1 and as per birth certificate, date of birth of the prosecutrix is 30.03.97, but it is clear from para 7 of his deposition that police seized attested copy of Article-1 and this document was attested by Station House Officer- Inspector- C.L. Uike (PW-10). 11. PW-10 Inspector- C. L. Uike admitted his signature on A to A part in 6 Article -1. In his cross-examination, he admitted this fact that the original copy of the said document brought by Sukhchand before him and he matched the same and attested the said document, thereafter, original copy of the document returned to Sukhchand. 12. It is evident from record that no original birth certificate was filed before the learned trial Court and only on the basis of statement of PW-3, the article was marked in the said document. 13. To sum up this issue, this Court has gone through document Article-1, birth certificate of the prosecutrix, which has been filed by the prosecution and according to birth certificate, the date of birth of prosecutrix is 30.03.1997, but it is apparent from the birth certificate, that the same has been issued on 28.07.2014 after 17 years of the birth of the prosecutrix. There is delay of about 17 years in issuing the said certificate. As per F.I.R. (Ex. P/1), date of lodging the FIR is 29.07.2014 and date of incident written as one year before (एक व्ቧ(cid:6) पूव(cid:6)). Thus, it is clear from the statements of PW-3 and PW-10 that soon before lodging the FIR, the birth certificate was obtained. 14. It has been held by Hon’ble Apex Court in the matter of Madan Mohan Singh and Another vs. Rajni Kant and Another 1 in paras 17,18, 21 and 22 as under:- 17. In State of Bihar & Ors. Vs. Radha Krishna Singh & Ors. AIR 1983 SC 684, this Court dealt with a similar contention and held as under:- "Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil.. . . . . 1 (2010) 9 SCC 209 7 Where a report is given by a responsible officer, which is based on evidence of witnesses and documents and has "a statutory flavour in that t is given not merely by an administrative officer but under the authority of a Statute, its probative value would indeed be very high so as to be entitled to great weight. The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little." 18. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. 21. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- 8 impeachcable evidence of reliable persons andontemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. (Vide: Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282; Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796; Vishnu Vs. State of Maharashtra (2006) 1 SCC 283; and Satpal Singh Vs. State of Haryana JT 2010 (7) SC 500). 22.If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 & 61 etc.of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time etc. mentioned therein. (Vide: Updesh Kumar & Ors. Vs. Prithvi Singh & Ors., (2001) 2 SCC 524; and State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868). 15. The question which arises before this Court whether the birth certificate issued with delay can be taken into consideration for determination of age of victim in criminal cases. 16. Undoubtedly, the birth certificate is a strong proof for determination of the age of a person and credibility of this document cannot be doubted but for regulating the registration of births and deaths and matters connected therewith, the Parliament has enacted the Registration of Births and Deaths Act, 1969. Different procedure were prescribed under Chapter-III- Registration of Births and Deaths and Section 13 deals with Delayed Registration of Births and Deaths. For ready reference, Section 13 (3) is reproduced herein as under : “13. Delayed registration of births and deaths. - (1) Any birth or death of which information is given to 9 the Registrar after the expiry of the periodspecified thereof, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed. (2) xxxx (3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.” 17. It is evident in this case that the prosecution has only produced certified copy of the birth certificate (Article-1) of the prosecutrix before the trial Court which is not admissible in evidence and it is also clear that before lodging the FIR, it was obtained by the complainant for the complaint purpose. 18. Now coming to the evidence of PW-2- mother of the prosecutrix, who has stated that she having three girl child and she did not remember the date of birth of anyone, even she does not know her date of birth. 19. Looking to the statement of mother of the prosecutrix and there being no proof regarding the age of the prosecutrix as no radiological test was conducted by the prosecution, so prosecution has failed to prove this fact as there were no relevant documents to state that the prosecutrix did not attain majority at the time of incident. 20. Prosecutrix PW-1 stated that she knows the accused since long and he 10 daily used to visit in her house, when she was living alone in the house, and established physical relations with her as married couple do, when she become pregnant then she disclosed the said fact to her mother and lodged the report before the concerned police station along with her maternal uncle PW-3. She further stated that she is the mother of one boy child from the appellant. In cross-examination, she admitted this fact when the appellant was establishing physical relations with her, she never resisted him and did not disclose to anyone about the said incident and she further admitted this fact that when she became pregnant, then all the villagers were aware of the said fact that she became pregnant and upon asking her, the person behind it, then she disclosed the name of the accused. She also admitted this suggestion that her maternal uncle told her to give statement as stated by him. It has been further admitted by her that had she been not pregnant, she would have not lodged the report. 21. PW-4 Dr. Kunti Thakur, examined the prosecutrix and finds that she is carrying a fetus of 28 to 30 weeks and gave her report vide Ex. P/5 and admitted her signature on A to A part in Ex. P/5. 22. PW-10 C. L. Uike admitted this fact that he did not conduct the DNA test of the accused. 23. DW-1 Nandkumar & DW-2 Sadhelal have stated that a village meeting was convened and in the said meeting, we asked the prosecutrix who is the person behind your pregnancy, then she said that she is not pregnant from the accused Sevan Chandel and on the next day lodged the report. 24. DW-3 Mannulal has also stated that the prosecutrix denied in the village meeting that the she is pregnant from the accused Sevan Chandel. 11 25. Thus, close scrutiny of the statements of the witnesses, it is evident that the prosecutrix was a consenting party to the act of the appellant, though she admitted this fact if had she been not pregnant, she would have not lodged the report. Learned trial Court also finds that prosecutrix is the consenting party, but looking to the age of the prosecutrix, learned trial Court convicted the appellant. 26. Thus, this Court finds that the prosecution has utterly failed to prove the age of the prosecutrix below 18 years of age beyond reasonable doubt. 27. It has been held by Hon’ble Apex Court in the matter of Ganesan vs. State Represented By Its Inspector of Police 2 in para 10.3 as under:- 10.3 Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under: “22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the 2 (2020) 10 SCC 573 12 court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross−examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co−relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence 13 to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 28. In the light of above judgment, it is clear that there are material contradictions in the statement of prosecutrix (PW-1). It is clear from evidence of prosecutrix that she is not sterling witness and applying the guidelines of the Hon’ble Apex Court, the solitary version in the examination in chief of the prosecutrix cannot be taken gospel truth on its face value, but the learned trial Court did not appreciate this fact while recording the finding of conviction. It is clear that prosecution has utterly failed to prove its case beyond all reasonable doubt. Thus, findings recorded by learned Trial Court being perverse are not sustainable in the eye of law. 29. In the result, the appeal is allowed. The impugned judgment of conviction and sentence dated 31.03.2015 is set aside. The appellant is acquitted of all the charges leveled against him. The appellant is reported to be on bail by virtue of order of Hon’ble Supreme Court vide its order dated 07.12.2017, therefore no order regarding his released etc. is needed. 30. Keeping in view the provisions of Section 437-A Cr.P.C.(481 of the B.N.S.S), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid 14 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 31. 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/- (Rajani Dubey) AMIT PATEL JUDGE