Motiram Sahu S/o Chandrika Prasad Sahu Aged About 37 Years R/o Village Doma, Police v. State of Chhattisgarh Through Station House Officer, Mujgahan, District Raipur Chhattisgarh
Case Details
YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.08.28 16:56:04 +0530 1 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on : 11.08.2025 Judgment Delivered on : 28.08.2025 CRA No. 1282 of 2019 Motiram Sahu S/o Chandrika Prasad Sahu Aged About 37 Years R/o Village Doma, Police Station Mujgahan, District Raipur Chhattisgarh. --- Appellant Versus State of Chhattisgarh Through Station House Officer, Mujgahan, District Raipur Chhattisgarh. --- Respondent CRA No. 1375 of 2019 Deva Yadav S/o Shri Ramesh Yadav Aged About 30 Years R/o Gali No.05, Near Chanakya Complex Paras Nagar, Police Station Ganj Raipur, Tahsil And District Raipur, Chhattisgarh. --- Appellant Versus State of Chhattisgarh Through The Police Station Mujgahan, District Raipur, Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Appellant (In CRA No.1282/2019) For Appellant (In CRA No.1375/2019) : Mr. C.R. Sahu, Advocate : Mr. Shivank Mishra, Advocate For Respondent/State : Mr. Ashish Shukla, Government Advocate 2 Hon'ble Smt. Rajani Dubey, Judge Hon'ble Shri Amitendra Kishore Prasad, Judge C A V Judgment Per Amitendra Kishore Prasad, J. 1. Regard being had to the similitude of the questions of facts and law involved being arising out of a common crime vide impugned judgment dated 29.07.2019 passed by the Additional Sessions Judge (F.T.C.), Raipur, District Raipur, Chhattisgarh in Special Sessions Trial No.12/2018, these appeals have been clubbed together, heard together and are being decided by this common judgment. 2. Appellant-Deva Yadav (A-1) has preferred CRA No.1375/2019 and Appellant-Motiram Sahu has preferred CRA No.1282/2019 under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) questioning the impugned judgment dated 29.07.2019 passed by the Additional Sessions Judge (F.T.C.), Raipur, District Raipur, Chhattisgarh in Special Sessions Trial No.12/2018, by which, both the appellants/accused have been convicted and sentenced as under :- Appellant – Deva Yadav Conviction Sentence Under Section 06 of the : Rigorous imprisonment for life and Protection of Children fine of Rs.5,000/-, in default of from Sexual Offences payment of fine, additional rigorous 3 Act, 2012 imprisonment for 02 years. Appellant – Motiram Sahu Conviction Sentence Under Section 18 of the : Rigorous imprisonment for 05 Protection of Children from years and fine of Rs.2,000/-, in Sexual Offences Act, 2012 default of payment of fine, additional rigorous imprisonment for 06 months. 3. Brief facts of the case are that, on 01/12/2017, the prosecutrix lodged a First Information Report (Ex. P-10) at Police Station Mujgahan stating that she resided in village Ganiyari and had studied up to class VIII. On 30/11/2017, being angry with her mother, she had left her house at about 12–01 PM to go to her aunt Pinky’s house at Bhilai. She had travelled from Ganiyari to Bangoli in a bullock cart and then reached Lodhipara Chowk, Raipur, at about 2:00 PM in an auto from Bangoli. While searching for an auto to Bhilai, she met the accused Deva, an auto driver, who offered to take her to Bhilai Power House. Instead of going there, he roamed around and took another route, stopping near a garden where his friend, co-accused Moti, followed on a motorcycle. At about 09–10 PM, both accused consumed alcohol near the deserted spot. The prosecutrix, out of fear, remained seated in the auto. Thereafter, accused Deva 4 forcibly removed her clothes, slapped her, carried her to the veranda of the garden, and committed rape, along with acts of physical assault such as pressing her breast, kissing, and biting. When Moti received a call and called out to Deva, she learned their names. Taking advantage of Deva’s brief absence, she wore her clothes, took Deva’s mobile, escaped by jumping over a curtain, and sustained injuries to her thigh and knee. She sought help at nearby houses, narrating the incident to residents. One elderly couple called the police, who arrived and took her to safety. 4. Based on her report, Crime No.263/2017 was registered under Sections 376 and 34 of hte Indian Penal Code, 1860 (for short, “IPC’) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). Statement of the prosecutrix was recorded, she was medically examined, and her frock and a mobile phone were seized (Exs. P-12, P-13). Documents regarding her minority were collected from her mother and the primary school records (Exs. P-16, P-26). 5. Upon finding sufficient evidence, the police arrested both accused (Exs. P-07, P-08). The medical examination of accused Deva was conducted, scene maps (Exs. P-11, Ex. P-01) were prepared, and his memorandum statement (Ex. P-02) was recorded. Seized articles included Deva’s underwear, auto- rickshaw, a sweater, a lady’s purse containing her Aadhaar card 5 were seized vide seizure memo (Exs. P-04, P-03), and a motorcycle from accused Motiram was also seized vide seizure memo (Ex. P-05). Certain articles were sent to the Forensic Science Laboratory for examination and the FSL report (Ex. P-32) is found to be positive. 6. After completion of the investigation, the charge sheet was filed against accused Deva Yadav under Section 376(2)(n) IPC and Section 6 of the POCSO Act, and against accused Motiram Sahu under Section 376(2)(n) read with Section 109 IPC and Section 6 read with Section 18 of the POCSO Act. Both accused denied the charges and claimed trial. 7. In order to prove the guilt, the prosecution has examined a total of 12 witnesses, namely: Patwari Yashwant Kumar (PW-01), Bhuneshwar Sonkar (PW-02), Manharan Nishad (PW-03), Bhikkham Nirmalkar (PW-04), Gautam Mahar (PW-05), the prosecutrix (PW-06), her mother (PW-07), Sub-Inspector Deendayal Kausale (PW-08), Sub-Inspector Mrs. Divya Sharma
Legal Reasoning
pronouncements of this Court in this regard: 8.1. This Court, in Birad Mal Singhvi v. Anand Purohit9, held that the entries contained in the school register are relevant and admissible but have no probative value unless the person who made the entry or provided the date of birth is examined. It was observed: “14. … If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. … The date of birth mentioned in the scholars' 12 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 the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. … 15. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the 13 date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. … The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined…" (Emphasis Supplied) This decision has been consistently followed by this Court in Pratap Singh v. State of Jharkhand; Babloo Pasi v. State of Jharkhand; Murugan v. State of T.N.; State of M.P. v. Munna; C. Doddanarayana Reddy v. C. Jayarama Reddy; and Manak Chand v. State of Haryana. 8.2. A coordinate Bench of this Court in State of Chhattisgarh v. Lekhram, through S.B. Sinha, J., clarified that though entries in school registers are admissible under Section 35 of the Evidence Act, their evidentiary value improves only when corroborated by oral testimony of persons who are aware of its content, such as parents or the person who made the entry at the time of admission. It held as under: 14 “12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect. 13. …The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive, but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix." 8.3. Similarly, this Court in Satpal Singh v. State of Haryana, stated that though a document may be admissible, but to determine 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. It held as follows: “26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 15 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous 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. x x x 28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for 16 the same remains as in any other civil and criminal case.” 8.4. In Madan Mohan Singh v. Rajni Kant, this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. It was held as follows : “20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 21. … For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents 17 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. …” 8.5. This Court, in Alamelu v. State, while dealing with a similar factual matrix, held that the prosecution had failed to prove that the girl was a minor at the relevant date since the transfer certificate of a Government School showing age was not duly proved by witnesses. It observed as under: “40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. 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. 31-7-1993. 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 Evidence Act, 1872. 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 18 person who made the entry or who gave the date of birth is examined. 41. We may notice here that PW 1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention the girl's age or date of birth. PW 2 was also examined on 9-8-1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. … In her cross- examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth was noticed as 15-6- 1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.” (Emphasis supplied) 9. In the attending facts, we find that the evidentiary value of Ex.P11 is significantly undermined in the absence of corroborating material. We say so for the following reasons: (i) PW-13, who is the Headmaster of Zilla Parishad High School, Chandanapur, 19 Peddapalli District (erstwhile Karimnagar District), stated that the victim studied in his school from 2007 to 2013, i.e., 6th Class to 10th Class and that the Admission Register records her date of birth as 3rd November 1996. However, in his cross-examination, he admitted that he had no personal knowledge as to the source or basis on which the date of birth was recorded therein or if the recorded date of birth was correct or not. The relevant part of his testimony is extracted hereunder: “…In our school there is not clerk to maintain records. I did not produce any certificate pertaining to earlier school I, In which P.W.3 studies up to 5th Class. There must be basis for entering date of birth of a student in our school such as her earlier school record. I do not have personal knowledge as to what record was produced by parents of P.W. 3 as basis to enter her date of birth in our school as I was not Head Master in 2007. I cannot say in which school P.W.3 studied up to 5th Class. In the nominal roll register of our school, the signature of P.W.3 was obtained. I do not have personal knowledge whether the said date of birth of P.W.3 was correct or not and I am giving evidence only on the basis of record.” (Emphasis Supplied) 20 (ii) The prosecution has failed to examine the person who had made the entry in the Admission Register to ascertain on what basis such an entry was made. More so, the entry in respect of the date of birth of the victim in the primary school register, i.e., 1st Class to 5th Class, has not been produced and proved before the Courts below to verify the age as per its records. It is also not possible to ascertain from the records as to whether the date of birth was provided by the parents or simply entered at the behest of another party, without verification, at the time of admission to Zilla Parishad High School. (iii) The testimonies of PW-1, PW-2 and PW-3 are also telling that none of them mentioned the victim's age with specificity. There is no reference to Ex.P11, and no attempt was made by the prosecution to adduce corroborative testimony regarding the victim's date of birth from her family members. Thus, while examining the issue at hand, on the anvil of the principles elucidated above, it is essential to notice that the prosecution has failed to toe the line of legal requisites. There is nothing on record to corroborate the date of birth of the victim as recorded in the birth certificate (Ex.P11) issued by the school. Therefore, it cannot be relied upon to definitely determine the 21 age of the victim and held with certainty that the victim was below sixteen/eighteen years of age. 11. Furthermore, none of the victim's family members, i.e., her mother and brothers have said anything about the age of the victim in their depositions made in the Court. Even the victim is effectively silent on this aspect, only stating that she and her siblings were born approximately two years apart and thereby making an estimation of their ages as well as her own. Throughout her deposition, the victim has remained silent with regard to her particular date of birth. 12. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the present facts and circumstances, the proof submitted by the prosecution in the form of Ex.P11 (birth certificate issued by the school) was not sufficient to arrive at a finding that the prosecutrix was less than sixteen/eighteen years of age, especially when such a document was not sufficiently corroborated. Therefore, it was neither safe nor fair to convict the appellant based on it, particularly in the context where the age of the victim was such a pivotal factor. " 21. 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:- 22 "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 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 Rules 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. 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 23 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 scrutinized and accepted 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 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 24 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 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." 25 22. 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 26 births and deaths were missing. Since it did not answer to thedescription 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 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 27 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 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 fromthe 28 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." 23. Reverting to the facts of the present case. The prosecutrix herself (PW-06) has stated that her date of birth is 17.03.2003, but in cross-examination, she does not narrate anything, her mother of (PW-07) has not stated anything with regard to date of birth of the prosecutrix as well as Shesh Narayan Verma (PW-12), Assistant Teacher/In-charge Headmaster of Primary School, Ganiyari, District Raipur, has though has admitted that in the Dakhil-kharij Register (Ex. P-37C), date of birth of the prosecutrix has been mentioned as 17.03.2003, but in cross-examination, he has stated that at the time of admission, the birth certificate has not been given by the parents of the prosecutrix. 24. Except for these evidences, no other evidence like Kotwari register or birth certificate have been produced by the prosecution to determine her age that on the date of incident, she 29 was minor or less than 18 years of age. The oral evidence of the prosecutrix herself (PW-06), mother of the prosecutrix (PW-07) and Shesh Narayan Verma (PW-12), Assistant Teacher/In-charge Headmaster of Primary School, Ganiyari, District Raipur, as also Dakhil-kharij Register (Ex. P-37C) are not sufficient to hold that the prosecutrix was minor on the date of incident because of the reason that no documents has been shown to ascertain the fact that on what basis the date of birth of the prosecutrix was recorded. The entry with regard to age of the prosecutrix has been mentioned in the Dakhil-kharij Register (Ex. P-37C) is not sufficient to hold actual date of birth of the prosecutrix. There is every possibility that the date of birth of the prosecutrix is recorded on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. 25. The evidence produced by the prosecution with respect to the age of the prosecutrix are not of that sterling quality which is sufficient to determine the age of the prosecutrix. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor, which
Arguments
(PW-09), Dr. Ashok Chandra (PW-10), Dr. Vidyashri (PW-11), and Assistant Teacher/In-charge Headmaster Shesh Narayan Sharma (PW-12) and exhibited 38 documents, whereas in defence, the accused-appellants have neither examined any witness nor exhibited any document. 8. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court vide 6 impugned judgment dated 29.07.2019 has convicted the appellants and sentenced them as mentioned in the opening paragraph of this judgment. Hence these appeals. 9. Mr. C.R. Sahu, learned counsel for the appellant in CRA No.1282/2019 has submitted that the appellant has been falsely implicated in the present case. The prosecution has completely failed to prove the guilt of the appellant. He further submits that there are so many contradiction and omission in the statement of the prosecution witnesses. The prosecution has completely failed to prove the age of the prosecutrix that on the date of the incident, the prosecutrix was minor as well as the appellant has not committed any crime with the prosecutrix. It has been contended that looking to the weak nature of evidence the appellant has been granted bail by Co-ordinate Bench of this Court vide order dated 24.10.2019, therefore, the conviction of the appellant is not sustainable and the appellant should be acquitted of the charges framed against him. 10. Mr. Shivank Mishra, learned counsel for the appellant in CRA No.1375/2019 submits that the conviction of the appellant is founded on an extremely doubtful evidence of the prosecutrix. He further submits that though the prosecutrix alleges that she was subjected to rape by the accused and she being a minor, the medical evidence does not support the case because no injury has been found on private part and the doctor has deposed that 7 she could not see any sign of sexual intercourse on the prosecutrix. The prosecutrix admits that she had quarrel with her mother and therefore, she left the house all alone. There is evidence that along with the prosecutrix there were other co- passengers sitting in the taxi/auto which was being driven by appellant Deva. It is defence of the accused which is plausible that there was a quarrel between the appellant and the prosecutrix with regard to payment of auto/taxi charges therefore, the appellant has been falsely implicacated. It has been contended that the age of the prosecutrix has not been proved and the prosecutrix is a consenting party to the incident. As such, the appeal be allowed and the appellant be acquitted for all the charges levelled against him. 11. On the other hand, Mr. Ashish Shukla, learned State counsel opposes the argument advanced by the learned counsel for the appellants and has submitted that the statement of the prosecutrix and other witnesses are fully reliable. He further submitted that there are sufficient evidence available on record to hold the appellants are guilty of the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference. 12. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 8 13. The first and foremost question arose for the consideration would be whether the prosecutrix was minor and less than 18 years of age on the date of incident or not ? 14. In order to consider the age of the prosecutrix, we have examined the evidence available on record. The prosecution has mainly relied upon Dakhil-kharij Register (Ex. P-37C), statement of the prosecutrix (PW-06), mother of the prosecutrix (PW-07) and Shesh Narayan Verma (PW-12) Assistant Teacher/Incharge Headmaster of Primary School, Ganiyari, District Raipur. According to the Dakhil-kharij Register (Ex. P-37C), the date of birth of the prosecutrix is 17.03.2003. 15. The prosecutrix (PW-06) has deposed in her examination-in-chief that her date of birth is 17.03.2003 and she was aged about 14 years on the date of incident. In her cross-examination, she has not narrated anything about her date of birth. 16. Mother of the prosecutrix (PW-07) has deposed in her examination-in-chief that she did not know the date of birth of her daughter, but her daughter was aged about 14 years on the date of incident. In his cross-examination, she admitted she had got the birth certificate made from the Kotwar regarding the birth of the victim, but the police had not seized the said birth certificate. She further admitted that her parents had admitted the victim in the school and she did not know whether the birth certificate 9 issued by the Kotwar had been submitted to the school at the time of enrolling the victim or not. 17. Shesh Narayan Verma (PW-12), Assistant Teacher/In-charge Headmaster of Primary School, Ganiyari, District Raipur, deposed that as per page No. 33, Serial No. 450 of the Dakhil-Kharij Register, the date of birth of the prosecutrix was 17.03.2003 and the date of admission in Class I was 15.07.2009. In cross- examination, he stated that at the time of admission, a birth certificate issued by the Nagar Nigam or Nagar Panchayat had been submitted, but he did not know which document had actually been submitted because, at the relevant time, he was not present in the school. He further stated that he did not know whether the parents had recorded the date of birth correctly or on the basis of assumption. 18. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecutrix so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school Dakhil-kharij register, it would not be safe to hold that the prosecutrix was minor on the date of incident. The statements of prosecutrix herself (PW-06), mother of the prosecutrix (PW-07), as also the statement of Shesh Narayan Verma (PW-12), Assistant Teacher/In-charge 10 Headmaster of Primary School, Ganiyari, District Raipur, are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 17.03.2003. 19. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under :- “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 20. The Hon’ble Supreme Court in the matter of Birka Shiva v. State of Telangana, 2025 SCC OnLine SC 1454 has observed as under: 11 "8. The evidentiary value of such an entry made in public or official registers may be admissible in evidence under Section 35 of the Indian Evidence Act, 1872. However, admissibility is distinct from probative value. While such documents may be admitted into evidence, their evidentiary weight depends on proof of their authenticity and the source of the underlying information. Mere production and marking of a document as exhibited by the Court does not amount to proof of its contents. Its execution has to be proved by leading substantive evidence, that is, by the ‘evidence of those persons who can vouchsafe for Hereinafter referred to as the ‘Evidence Act’ the truth of the facts in issue’. [See: Narbada Devi Gupta v. Birendra Kumar Jaiswal] We may refer to a few judicial
Decision
is illegal, hence we hold that prosecutrix is not minor on the date of incident. 26. The next question for consideration would be whether the appellants have committed rape upon her or not ? 30 27. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Paragraphs 9 and Para 10 of its judgment by observing as follows :- “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 establishes that though immediately prior to the minor leaving the 31 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". 28. Testimony of the prosecutrix (PW-06) :The prosecutrix stated in her chief examination that she knew the accused only since the incident, which had occurred about a year earlier. On the date of the incident, she had left her house during the day to go to her aunt Pinki’s house in Bhilai, following a quarrel with her mother. She travelled from her village Ganiyari to Bangoli by bullock cart and then by auto, reaching near the Raipur bus stand, where she was looking for an auto to Bhilai. At that time, accused Deva Yadav arrived in his auto, calling for passengers to Power House, Bhilai. She boarded his auto; an old man already in the vehicle 32 alighted on the way, after which she was alone. The accused took a “short-cut” route, roamed around, and instead of going towards Bhilai Power House, stopped near a garden where his friend, accused Motiram Sahu, followed on a motorcycle. The prosecutrix further deposed that the accused consumed liquor near the garden. When she tried to leave, accused Deva took her to a deserted white house inside the garden, removed her clothes, and forcibly raped her three times. Accused Motiram was present and instigated Deva to hurry up. While Deva stepped outside upon receiving a call from Moti, she took his mobile phone, escaped by jumping over the fence, and ran across the fields, sustaining injuries on her thighs and knees. She sought help from nearby houses; ultimately, an elderly couple informed the villagers, and the police were called. The next morning, she lodged the FIR (Ex. P-10). The site map was prepared, she was medically examined, her frock was seized, and she handed over Deva’s mobile to the police. Her statement under Section 164 Cr.P.C. (Ex.P-14) was recorded before the Magistrate. 29. In cross-examination, she admitted she had not informed her family before leaving home. She stated that although she became suspicious when the accused roamed instead of taking the direct route, she did not call for help as she believed his statement about taking a shortcut. 30. Testimony of mother of the prosecutrix (PW-07) : The mother 33 of the prosecutrix, deposed that on the date of the incident, her daughter left home without informing anyone. She searched for her till evening but could not find her. The next day, police informed her that the prosecutrix was at Police Station Mujgahan. At the police station, the prosecutrix narrated the incident of rape and pointed out one of the accused as the perpetrator. She further stated that after the incident, her daughter had run away holding the gobail of the accused, reached another village, and sought help from elderly residents who informed the police. Rajkumari supported the consent letter (Ex. P-15) and the surrender letter (Ex. P-17). 31. In cross-examination, she admitted that her knowledge of the incident was based on what the prosecutrix had told her, though she had personally seen injury marks on the prosecutrix’s body. 32. Medical Evidence : Dr. Vidyashri (PW-11) deposed that on 01/12/2017 at 4:20 PM, she examined the prosecutrix and prepared the medical report (Ex. P-21/A) and she found following symptoms and injuries :- “The prosecutrix was found to be developing secondary sexual characteristics. A long stripe-like mark was present on her thigh, appearing to have been caused by a sharp and blunt object, and the injury was estimated to be within 24 hours old. 34 As the prosecutrix was on the second day of her menstrual cycle, internal examination was limited. Two slides of blood discharge were prepared and handed over, in sealed condition, to the accompanying constable for chemical examination. The doctor opined that due to the menstrual cycle, a definite conclusion could not be given. She further stated that on the same day, the constable presented a sealed packet containing a bright green-coloured paper with a marked stained area circled in black ink. As per report (Ex.P-22/A), the packet was resealed and returned for chemical examination.” 33. 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 appellants have committed rape upon her, rather it reflects from the evidence that the prosecutrix herself that she had left her home voluntarily without informing any family member and travelled from her village to Raipur, and thereafter remained in the company of accused Deva Yadav for several hours before the alleged incident. She admitted that she boarded the accused’s auto of her own accord at Raipur bus stand and that during the journey an elderly passenger, who was present initially, alighted mid-way, leaving her alone with the accused. 35 Despite being aware that the route being taken was different from the direct route to Bhilai Power House, she did not raise any alarm, call for help, or attempt to leave the vehicle, even when they passed through public places. The prosecutrix further stated that when she questioned the accused about taking a different route, he informed her that he was taking a “shortcut” to Bhilai, and she accepted that explanation. She did not attempt to inform anyone of any apprehension, though she had met acquaintances on the way and had opportunities to seek assistance. 34. The sequence of events as narrated by the prosecutrix indicates that she continued with the accused until late in the night without showing resistance or making any effort to distance herself from him. Her own testimony thus suggests that there was no immediate threat or coercion compelling her presence with the accused prior to the alleged act, which casts a serious doubt on the prosecution case regarding the use of force and absence of consent. 35. Since, it is held that the prosecutrix is not below the 18 years of age, she is capable to give her consent and therefore, it cannot be said that the appellants procured a minor girl with the intention to illicit intercourse or committed rape upon her. 36. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony 36 of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellants beyond reasonable doubt, which the prosecution has failed to do so in the instant case. 37. Upon a comprehensive evaluation of the evidence on record, this Court finds that the prosecution has not been able to prove the guilt of the appellants beyond reasonable doubt. The testimony of the prosecutrix, though central to the case, suffers from material contradictions and omissions when compared with her previous statements under Section 164 Cr.P.C. and the FIR. Significantly, her own admissions reveal that she had accompanied accused Deva Yadav from her village to Raipur and remained with him for several hours without raising any alarm, despite having multiple opportunities to do so. The explanation given by the accused regarding taking a “shortcut” was accepted by her, and she did not seek help even when she encountered known persons on the way. 38. The medical evidence, as adduced by Dr. Vidyashri (PW-11), does not yield any conclusive finding of recent forcible sexual intercourse. The alleged injury on the thigh of the prosecutrix is not of such a nature as to independently corroborate the prosecution’s version. 39. It is trite law that the prosecution must stand on its own legs and 37 that suspicion, however strong, cannot take the place of proof. Where the evidence is capable of two interpretations, the one favourable to the accused must prevail. In the present case, the cumulative effect of the inconsistencies in the prosecutrix’s account, the inconclusive medical findings, and the lack of independent corroboration leads to the irresistible conclusion that the prosecution has failed to discharge its burden of proof. 40. In the result, the appeals being CRA No.1282/2019 and CRA No.1375/2019 are allowed. The impugned judgment of conviction and order of sentence dated 29.07.2019 is hereby set aside. 41. The appellants are acquitted from all the charges leveled against them. It is stated that the appellant – Deva Yadav is in jail. He be released forthwith, if not required in any other case. 42. It is also stated that the appellant – Motiram Sahu is on bail. The bail bond executed by him and his sureties shall stand discharged. 43. Keeping in view the provisions of Section 437-A Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), 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 38 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 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 44. The trial Court record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) Judge Sd/- (Amitendra Kishore Prasad) Judge Yogesh