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2025:CGHC:4578

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 467 of 2021

1 - Parmeshwar Chandravanshi S/o Lilhar Chandravanshi Aged About 20 Years

R/o Village- Aalikhuta, Thana- Tumdibod, Distt- Rajnandgaon, Chhattisgarh

... Appellant

versus

1 - State of Chhattisgarh Through Thana- Balod , District- Balod, Chhattisgarh

... Respondent

For Appellant : Ms. Shivali Dubey, Advocate

For State : Ms. Vaishali Mahilong, PL

(Hon’ble Shri Justice Arvind Kumar Verma)

Order on Board

24/01/2025

1.This criminal appeal preferred by the appellant under Section 374 (2) of

the Code of Criminal Procedure is directed against the impugned

judgment dated 26/03/2021 passed by the Special Sessions Judge,

(Charge F.T.C.), District Balod, C.G. in Special S.T. No.18/2019

whereby the appellant has been convicted and sentenced as under:-

Conviction Sentence

Under Section 363 of the Indian Penal

Code, 1860

R.I. for Three Years and fine of

Rs.500/- and in default of payment of

fine one month additional R.I.

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Under Section 366 of the Indian Penal

Code, 1860

R.I. for Five years and fine of Rs.500/-

and in default of payment of fine one

month additional R.I.

Under Section 376 (2) (I) of the Indian

Penal Code, 1860

R.I. for Ten years and fine of Rs.1,000

and in default of payment of fine Two

months additional R.I.

Under Section 3 (A)/4 of Protection of

Children from Sexual Offences Act,

2012

R.I. for Seven years and fine of

Rs.1,000 and in default of payment of

fine Two months additional R.I.

All sentences run concurrently and

fine amount separately recovered.

2.The case of the prosecution, in brief, is that on 10.02.2019, the

prosecutrix lodged a report in the police station Balod that on 09.02.2019

at about 02.30 pm, her granddaughter, aged 15 years 02 months 19 days,

went somewhere from her house in village Matiya-P without informing

anyone and she could not be found even after searching. Based on the

above information, missing person case no. -12/2019 was registered in

police station Balod and search was made and crime No. -70/2019 under

section 363 IPC was registered against unknown accused in police

station Balod and investigation was started. During investigation, the

minor victim was recovered from the possession of the appellant on

21.02.2019. The statement of the minor victim was recorded under

section 161 and 164 of the Code of Criminal Procedure. Her medical

examination was conducted. The victim's underwear was seized and

tested. The progress card of class 9th regarding the age of the victim and

the admission and Dakhil Kharij Register of the school were seized. The

accused was arrested and his underwear was seized and the accused and

the underwear were tested. The property received from the hospital were

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sent for examination in Forensic Science Laboratory, Raipur. The

motorcycle used in the crime along with the documents was seized. A

site map of the incident was made and statements of the remaining

witnesses were recorded. After all the remaining investigation, a charge

sheet against the accused for the offences under Sections 363, 366, 376

IPC, Sections 4, 5 (B) & 6 of the POCSO Act was presented before the

court.

3.The appellant abjured his guilt during trial and claimed to be tried. The

prosecution on its behalf examined as many as 10 witnesses. The

learned trial Court after evaluating the facts & evidence convicted the

accused as aforesaid. Hence this appeal.

4.Learned counsel for the appellant would contend that the appellant has

been falsely implicated in this case. She would next contend that the

prosecution has failed to prove the age of the victim and the learned trial

Court has only relied upon the document mark-sheet which is not proved

by its author. She would next contend that the independent witnesses

have not supported the case of the prosecution. She would lastly contend

that the order of the trial Court requires interference by this Court and

the appellant may be acquitted of the charges and he may be released on

bail.

5.Per contra, learned State counsel would submit that the order of the

Court below is well merited which do not call for any interference by

this Court.

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6.I have heard learned counsel for the parties at length and perused the

evidence with utmost circumspection.

7.The primary which falls for consideration before this Court is that

whether on the date of incident the prosecutrix was minor or not?

8.The father of the prosecutrix has been examined as PW-3 and he has not

stated the exact date of birth of the prosecutrix. Mr. K.N. (PW-4), who is

the lecturer in the Government Higher Secondary School, Pondi has

admitted in para 3 of his statement that the date of birth of the victim has

been entered in the Dakhil Kharij register Exhibit P17 but it is has been

recorded on the basis of the date of birth written in the previous transfer

certificate and mark sheet. He further stated that at the time of entering

the date of birth of the victim in the Dakhil Kharij register birth

certificate of the victim was not produced.

9.Section 94 of the Juvenile Justice (Care and Protection of Children) Act,

2015 which operates in the field of presumption and determination of

age, is reproduced hereinbelow for ready and reference:-

94. Presumption and determination of age.-(1) Where,

it is obvious to the Committee or the Board, based on the

appearance of the person brought before it under any of

the provisions of this Act (other than for the purpose of

giving evidence) that the said person is a child, the

Committee or the Board shall record such observation

stating the age of the child as nearly as may be and

proceed with the inquiry under section 14 or section 36,

as the case may be, without waiting for further

confirmation of the age.

(2) In case, the Committee or the Board has reasonable

grounds for doubt regarding whether the person brought

before it is a child or not, the Committee or the Board, as

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the case may be, shall undertake the process of age

determination, by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or the

matriculation or equivalent certificate from the

concerned examination Board, if available; and in

the absence thereof;

(ii) the birth certificate given by a corporation or a

municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age

shall be determined by an ossification test or any

other latest medical age determination test conducted

on the orders of the Committee or the Board:

Provided such age determination test conducted on

the order of the Committee or the Board shall be

completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be

the age of person so brought before it shall, for the

purpose of this Act, be deemed to be the true age of that

person.

10. Further in case of Alamelu and Another Vs. State, represented by

Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has

held that the transfer certificate which is issued by 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 is examined. In paragraphs 40, 42, 43, 44 and 48 of its

judgment in Alamelu (Supra), the Supreme Court has observed as

under :

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“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.

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:-

"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,

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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 Jaiswal, where this Court observed as follows:-

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"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.

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

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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.”

11.The prosecution has failed to produce any birth certificate of the

prosecutrix and the prosecution could not conduct the ossification test of

the prosecutrix to ascertain the correct age of the prosecutrix. The

prosecution has mainly relied upon the Dakhilkharij Register Ex. P/17 in

which the date of birth of the prosecutrix was mentioned as 21/11/2003

also the prosecution has filed the class 9

th

progress card (Ex. P/10) in

which also the date of birth of the prosecutrix has been mentioned as

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21/11/2003 and the author of the Dakhilkharij Register has not been

examined.

12.It is a settled proposition that when 2-3 views came to fore and the

victim herself comes out with categorical date of birth, the evidence

which favours the accused is required to be admitted. This proposition

has been been laid down in the matter of Kali Ram vs. State of H.P.

reported in (1973) 2 SCC 808 and has been reiterated in the matter of

Pradeep Kumar vs. State of Chhattisgarh reported in (2023) 5 SCC

350 wherein, relevant para-27 reads as under :-

“27. It is important to note that the cardinal principles

in the administration of criminal justice in cases

where heavy reliance is placed on circumstantial

evidence, is that where two views are possible, one

pointing to the guilt of the accused and the other

towards his innocence, the one which is favourable to

the accused must be adopted.”

13.Applying the aforesaid well settled principles of law and for the reasons

stated hereinabove, we allow the appeal and set aside the impugned

judgment dated 26/03/2021. Appellant stands acquitted of the charges

leveled against him. Appellant is reported to be in jail, he be set at liberty

forthwith if not required to be detained in any other case.

14.In the result, the appeal is allowed.

SD/-

(Arvind Kumar Verma)

JUDGE

ashu