Rajpur, Police Chowki Bariya, District Balrampur, Chhattisgarh v. State Of Chhattisgarh Through Station House Officer, Police Station Lundra, Dist
Case Details
1 CRA No. 955 of 2016 SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.07.18 10:50:08 +0530 2025:CGHC:32667 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 955 of 2016 Godri @ Sher Singh S/o Late Hub Lal Aged About 26 Years Occupation Agriculturist, R/o Village Aara, Dhavai Bandhpara, Police Station Rajpur, Police Chowki Bariya, District Balrampur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Lundra, District Sarguja, Chhattisgarh., Chhattisgarh ... Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. Sushil Dubey, Advocate For Respondent(s) : Mr. R.C.S. Deo, Panel Lawyer Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 14/07/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 30.06.2016 passed in Sessions Case No. 124/2015 by the learned Sessions Judge, Ambikapur, District Surguja, C.G., whereby the 2 CRA No. 955 of 2016 appellant has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 02 years and fine of Rs. 200/- with default stipulation. U/s 366A of the IPC Rigorous imprisonment for 03 years and fine of Rs. 300/- with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that on 13/12/2011, the victim went to school with her cousin and friend Saraswati. In the lunch break, they went to Phulkunwar's house where the victim had some lunch. Thereafter her cousin and her friend returned to school but the victim did not return, rather she went towards the forest and did not return to school/home. On the next day when the victim's father (complainant) came home, his wife told him about the incident. They looked for the victim among relatives and in neighboring villages but when she was not found, her father filed a missing report on 15/12/2011. During the investigation of the missing report, it was found that the accused had abducted the victim on 13/12/2011 with the intention of rape with her
Facts
and to marry her and keep her as his wife. Thereafter an FIR was lodged and a case was registered against the appellant. 3. During investigation, Spot Map (Ex.P/3) was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P-7C) was seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was 3 CRA No. 955 of 2016 submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution has examined 10 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30.06.2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7.
Legal Reasoning
42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- 6 CRA No. 955 of 2016 "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. 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 Jaiswal2, 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"." 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. 7 CRA No. 955 of 2016 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 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 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." offence where 15. 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. 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 8 CRA No. 955 of 2016 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 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 2007 made under the JJ 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. Rules 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 the case is pending for trial Board when 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 has to be declaration of the age of a person made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to 9 CRA No. 955 of 2016 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 hypertechnical 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 public documents, such as matriculation certificate, could be accepted by the Court or the JJ 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 10 CRA No. 955 of 2016 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." 16. 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 JJ 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 concerned authority, i.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 11 CRA No. 955 of 2016 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 inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) 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 12 CRA No. 955 of 2016 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 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)(i) 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." 17. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. It is also to be noted that in the offences as grave as this, approximation of age cannot take place of exact date of birth to convict the appellant. 18. The next question for consideration would be whether trial Court is justified in convicting the appellant for the offence under Sections 363 & 366A of the IPC. 13 CRA No. 955 of 2016 19. The victim has been examined as PW/10 who voluntarily stated that the accused is her husband and she has been living with him since 2011. She stated that she went with the accused from school, at that time she was studying in class 6th in the Government Middle School, Village Bakna. She categorically stated that she was not married to the accused in the year 2011, but in the year 2012, she and the accused went to the temple of Kudargarh and got married. According to this victim, out of the said wedlock they blessed with two children. She in her cross-examination has stated that the accused did not abduct her and never did anything wrong with her. She herself stated that at the time of recording of this statement, her parents knew that she lives with the accused. 20. PW/1 – father of the victim has stated that about a year after the incident, his daughter came to village Ara with the accused after getting the information, he went to village Ara where both the accused and his daughter were found in the house of the accused. He stated that his daughter is currently living with the accused and also admitted the fact that they have two children. 21. PW/5 – brother of the victim stated that about 2 years after the disappearance of the accused and her sister, both of them informed us via mobile that his sister has given birth to a child. He stated that his sister had told us that on the date of the incident, she and the accused had gone to Baikunthpur from the school where they lived as husband and wife for two years and after having a child, they went from Baikunthpur to the house of the accused. Since the above incident, his sister has been living 14 CRA No. 955 of 2016 with the accused in his house in village Ara. He further stated that about 5-6 months after the birth of the child, his sister and the accused came to our house and stayed for about 8 days. Moreover, in his cross- examination, he categorically stated that he did not know whether the accused forcibly abducted his sister or she went with him on her own free will. 22. Bare perusal of the above statements, it is crystal clear that the victim went with the accused on her own will and the accused did not induce or entice or lure the victim to go with him or to leave the lawful guardianship of her parents rather it reflects from the evidence that the victim accompanied him to elope with him. As such, there is no corroborative evidence placed by the prosecution to prove the guilt of the accused for the offence punishable under Sections 363 & 366A of the IPC. Perusal of the evidence of the victim girl also shows that she was simply accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366A of the IPC. Though, the learned Panel Lawyer vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366A of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit 15 CRA No. 955 of 2016 intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence under Sections 363 & 366A of the IPC. Hence, the trial Court is fully unjustified in convicting the appellant for offence under Sections 363 and 366A of the IPC. 23. Upon cumulative analysis, it is found that there is material contradictions in the statements of the prosecution witnesses and it appears to be a false case of implication of the appellant. Therefore, I am of the opinion that the offence under Section 363 & 366A of the IPC for abduction or abduction of a minor girl cannot be held reliable against the appellant as it is crystal clear from the facts that the victim on her own free will lives with the accused. 24. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has forcefully abducted the victim, rather it reflects from the evidence that the victim herself on her own free will went and lives with the accused. It is also clear from the statements of the prosecution witnesses that the victim and the appellant having two children and there appears to be a loving relationship between them, thus, it cannot be said that the appellant committed any offence. 25. For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim, and from the evidence of the victim the same creates doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, I 16 CRA No. 955 of 2016 am of the view that the appellant is entitled to be acquitted. 26. Hence, the accused is acquitted of the charges for which he was tried. The impugned judgment of conviction and sentence is set aside. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal Appeal is allowed. 27. 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. S. Bhilwar/ Gowri Sd/- (Bibhu Datta Guru) Judge
Arguments
Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. Learned counsel would submit that the prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident and without there being any evidence with regard to the age of the Victim, the conviction of the appellant is bad in the eyes of law. 4 CRA No. 955 of 2016 8. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 9. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question arises before this Court whether the victim was minor on the date of incident or not?. 11. The father (PW/1) of the victim stated in his cross-examination that he is illiterate and unable to tell his children’s actual date of birth whereas he categorically stated that at the time of incident, his daughter was appeared to be aged about 21 years. Hence, the age of the victim cannot be defined. 12. PW/6- Rajesh Pandey posted as Head Master in the Primary School, Baknakala has stated in his statement that in the original admission register, the date of birth of the victim is mentioned as 25.05.1998. He has not stated in his statement that on what basis, the entry was made in the register. He stated that he has submitted a hand written certificate (Ex.P/10) regarding date of birth of the victim to the police official which is duly certified by him according to her date of birth mentioned in the Dakhil Kharij Register. In the cross-examination, he categorically stated that he did not know who had made the entry in the admission 5 CRA No. 955 of 2016 register. He also stated that he did know who came to enroll her in the school and made to mention the date of birth of the victim as also there is no documentary evidence attested with the Register. 13. Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij register, but on what basis, the entry was made, is not mentioned in the register and there is no basis or certificate has been attested to record the entry. As also there is no medical evidence with regard to actual age of the victim. 14. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, 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 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.