Criminal Appeal No. 1759 of 2022 · Nafr High Court
Case Details
1 Digitally signed by RAMESH KUMAR VATTI 2025:CGHC:532-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1759 of 2022 • Johit Patel S/o Dashrath Patel Aged About 22 Years, R/o Village Bhilai, Police Station Jarhagaon, District – Mungeli, Chhattisgarh ... Appellant Versus • State of Chhattisgarh Through Station House Officer, Police Station Jarhagaon, District – Mungeli, Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Sanjay Agrawal, Advocate and Mr. K. Rohan (through Legal Aid), Advocate
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 v. Anand Purohit, 1988 Supp. SCC 604, observed as follows: (SCC pp. 618- 19, para 14) "14. …. 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 Exts. 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." (emphasis supplied) 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745 where this Court observed as follows: (SCC p. 751, para 16) “16. ...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 12 its contents. Its execution has to be proved by admissible evidence, that is, by the ‘evidence of those persons who can vouchsafe 7 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. 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 v. State of U.P., (2006) 5 SCC 584 which held as follows: (SCC p. 595, para 38) "38. 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 offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." (emphasis supplied) 11. The date of birth of the victim was not recorded in the school admission register on the basis of any valid document like birth certificate, Village Kotwar Register etc. The father of the Victim i.e. 8 PW 2 has admitted the fact that the basis of the date of birth of the victim was guesswork. The Head Master of School PW 3 has also admitted the fact that no relevant document was produced by the father of the victim at the time of admission to the school. 12. In light of the above facts and judgments passed by the Hon’ble Supreme Court concerning proof of age, we find no legally admissible evidence to prove the fact that the victim was less than 18 years of age on the date of the incident. The learned trial Court has convicted the appellant on the ground that the victim was below 18 years of age on the date of the incident. Accordingly, we set aside the finding recorded by the learned trial court that on the date of the incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. 13. The victim who has been examined as PW-1, in her examination- in-chief has stated that there was a love affair between her and the appellant and they wanted to marry. She has further stated that she herself asked the appellant to proceed somewhere. She further stated that they went to Bilaspur and they worked as a labourer and the appellant developed physical relations with her consent. This witness was not declared hostile. 14. PW-2 is the father of the victim, who lodged FIR (Ex. P/5) and has stated that the name of his daughter was not entered in the school admission register on the basis of any document. He has also admitted that the victim never narrated the incident to him. 15. PW-8 Dr. Neha Smriti Lal has stated that the victim was habitual 9 to sexual intercourse and no injuries were found in her private parts. 16. Slides prepared by PW-8 and the undergarments of the victim were sent for FSL and according to the FSL report, sperm was not found either on slides or undergarments. 17. Close scrutiny of the evidence led by the prosecution makes it clear that the victim was a consenting party in making physical relations with the appellant. She voluntarily accompanied the appellant and stayed at Bilaspur for a considerable period. Her conduct would show that she was entangled with the appellant and engaged him making physical relations consensually. She did not make a complaint to any person in a nearby place while going to Bilaspur. 18. Considering the entire facts and circumstances of the case, particularly the evidence concerning the age and conduct of the victim, we are of the opinion that the victim was more than 18 years of age at the time of the incident. Further, she was a consenting party with the appellant in making physical relations, therefore, in the aforesaid facts and circumstances of the case, the offences under Sections 363, 366, 376(2)(n) of IPC and Section 6 of POCSO Act would not be made out against the
Arguments
For Respondent/State : Mr. S.S. Baghel, Panel Lawyer Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Rakesh Mohan Pandey, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 06/01/2025 1. The appellant has preferred this appeal under Section 374 (2) of the Criminal Procedure Code, 1973 (for short ‘CrPC’) against the judgment of conviction and order of sentence recorded by the Special Judge (FTSC), POCSO Act, Mungeli in Special Criminal Case No. 03/2021 dated 19.10.2022, whereby the appellant has been convicted in the following terms:- 2 Conviction Sentence U/s 363 of Indian Penal Code (for short ‘IPC’) R.I. for 05 years with a fine of Rs.1,000/-, in default of payment additional S.I. for 02 months U/s 366 of IPC the U/s 6 of of Protection from Children Sexual Offences Act, 2012(for short ‘POCSO’ Act R.I. for 05 years with a fine of Rs.1,000/-, in default of payment additional S.I. for 02 months R.I. for 20 years with a fine of Rs.2,000/-, in default of payment additional S.I. for 02 months All the sentences are directed to run concurrently 2. The brief facts of the case are that on 18.12.2020 at 04:00 pm, the appellant kidnapped the victim aged about 14 years, and 09 months from her lawful guardianship with the intent to marry her and thereby sexually assaulted her many times. It is the further case of the prosecution that on 20.12.2020, the father of the victim lodged a report at the Police Station, Jarhagaon, Mungeli in this regard against an unknown person and an FIR (Ex. P/5) was registered for the commission of an offence punishable under Section 363 of IPC. On 03.01.2021 the victim was recovered, who was in the company of the appellant. Her statement under Section 164 of Cr.P.C. was recorded. The site plan was prepared. Statement of the witnesses was recorded and pursuant to the statement of the victim, the offence punishable under Sections 366 and 376 of IPC and Sections 4 and 6 of the POCSO Act were added. After that, the appellant was arrested. 3. The learned trial Court framed the charge for the commission of 3 offences punishable under Sections 363, 366, 376 (2) (n) of IPC and Section 6 of the POCSO Act against the appellant. The appellant abjured the charges and pleaded not guilty. 4. The prosecution examined 09 witnesses and exhibited 26 documents to prove the guilt of the appellant. Statement of the appellant under Section 313 Cr.P.C. was recorded where he took the plea of false implication. The learned trial Court after appreciating the material available on record, convicted and sentenced the appellant as stated in the opening para of this judgment. 5. Mr. Sanjay Agrawal and Mr. K. Rohan, learned Advocates appearing for the appellant would submit that the prosecution failed to prove the age of the victim. They would contend that the school admission register was produced but entry regarding the age of the victim in the school register is of not much evidentiary value in the absence of material on which the age was recorded. They would further submit that the father of the victim has not brought any material to prove the age of the victim. They would further contend that the age of the victim was recorded in the school register without there being any basis. They would also contend that the victim herself has admitted the fact that she went along with the appellant on her own will and the appellant developed physical relations with her consent. The victim further stated that she remained in the company of the appellant for a considerable period. They would argue that in the absence of proof of age, the learned trial Court committed an error of law in 4 convicting and sentencing the appellant. In support thereof, they have placed reliance on the judgments passed by the Hon’ble Supreme Court in the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584 and the matter of Alamelu and Another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385. 6. On the other hand, Mr. S.S. Baghel, learned Panel Lawyer appearing for the State/respondent would submit that the prosecution has proved the age of the victim. He would contend that at the time of the incident, the age of the victim was 14 years and 09 months and her consent, if any given by her, would be irrelevant. He would further submit that the prosecution has examined PW-3 Rajesh Kumar Lakada, Headmaster of the school, who entered the date of birth in the school admission register and he has proved the entry made in the document. He would further contend that the prosecution witnesses have proved the case against the appellant beyond reasonable doubt and the learned trial Court has rightly convicted and sentenced the appellant. He would also submit that the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties and perused the records of the trial Court with utmost circumspection. 8. The Hon’ble Supreme Court in Ravinder Singh Gorkhi (supra), relying upon its earlier judgment in the case of Birad Mal Singhvi Vs. Anand Purohit, 1988 Supp. SCC 604, held as under:- “26. To render a document admissible under Section 5 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." 9. In the case of Alamelu (supra), the Hon'ble Supreme Court has held that the transfer certificate which is issued by a government school and is duly signed by the Headmaster 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 prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme Court held that 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 was examined. 10. In paragraphs 40, 42, 43, 44 and 48 of its judgment in Alamelu (supra), 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 6 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.
Decision
appellant. For the foregoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 19.10.2022 is hereby set aside. The appellant stands acquitted of all the charges. The appellant is reported to be in jail since 04.01.2021, he be released forthwith if he is not required in any other case. 10 19. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of a sum of Rs.25,000/- with two reliable sureties 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 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 20. The lower court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Rakesh Mohan Pandey) Judge (Ramesh Sinha) Chief Justice vatti