Chattisgarh High Court

Prem Chand @ Pramdas vs State Of Chhattisgarh on 22 February, 2022

                                                                                                           AFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR
                                                                Judgment reserved on 18.01.2022
                                                            Judgment pronounced on 22.02.2022


                                          CRA No. 761 of 2002
     • Premchand @ Premdas, s/o Shri Bhagatram @ Sadhudas Sahu, aged about
       28 years, R/o Jaijaipur, PS-Jaijaipur, District-Janjgir-Champa (CG)
                                                                                    ---- Appellant (In jail)
                                                   Versus
     • The State of Chhattisgarh, Through - PS Jaijaipur, Janjgir-Champa
       Chhattisgarh                                      ---- Respondent
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For Appellant                                          : Shri Rajesh Jain, Advocate
For Respondent/State                                   : Shri Vimlesh Bajpai, GA

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Hon'ble Shri Justice Parth Prateem Sahu CAV Judgment (Proceeding through Video Conferencing)

1. Appellant by this appeal would assail judgment dated 20.06.2002 passed

in Sessions Trial-116 of 2001 passed by Additional Sessions Judge, Sakti,

District- Bilaspur, whereby appellant was convicted under Sections 363, 366 and

376(1) of the IPC and awarded sentences as mentioned below:

                     Conviction                                                Sentence
Under Section 363 of IPC                                 RI for 3 years and Rs.500/- fine amount in
                                                         default of payment RI for three months
Under Section 366 of IPC                                 RI for 5 years and fine amount Rs.1,000/-
                                                         in default of payment RI for six months
Under Section 376(1) of IPC                              RI for 10 years and fine amount
                                                         Rs.2,000/- in default of payment RI for
                                                         one year.      All sentences to run
                                                         concurrently

2. Facts relevant for disposal of this appeal are that father of prosecutrix

lodged report before concerned Police Station on 20.11.2000 stating therein that

his daughter went away from house on 17.11.2000 at about 4 pm intimating her

family members that she is going out to answer nature's call. She did not return Cra 761 of 2002

back, she was searched at nearby places. During search, it revealed that

prosecutrix went along with appellant on his bicycle few days back. Based on

information gathered, report was lodged against appellant Premchand. Police

registered crime for offences defined under Sections 363 and 366 of the IPC

initially. After few days, prosecutrix returned back to her house, her statement

was recorded and after conclusion of investigation, Police submitted charge-

sheet before the Court of Jurisdictional Magistrate on 29.01.2001 against

appellant for offences defined under Sections 363, 366 and 376 of the IPC. Trial

Court framed charges under all three Sections.

3. During the course of trial, Police/prosecution proved as many as 40

documents ie from Ex.P1 to Ex.P40 through 13 witnesses. Prosecutrix was

examined as PW1, Samaru Ram- Grandfather of prosecutrix as PW2, Sukhi Das

as PW3, father of prosecutrix as PW4, Genduram- Assistant Teacher of Primary

School, Amgaon, District-Janjgir-Champa as PW5, Bajranglal as PW6, Mother

of prosecutrix as PW7, Kanhayyalal Sahu, Sarpanch, Amgaon as PW8, Shergir

as PW9, Bhagwat Prasad as PW10, Dr Kum. Saroj Kashyap as PW11, who

examined prosecutrix, Dr KM Uraon, who examined appellant as PW12,

Investigating Officer as PW-13, to prove the case of prosecution. Appellant's

statement under Section 313 of CrPC was recorded. Statement of prosecutrix,

her grandfather and father recorded under Section 161 of CrPC are placed on

record as Ex.D1, D2 and D3 respectively.

4. On appreciation of evidence, learned Sessions Judge arrived at a

conclusion that on the date of incident prosecutrix was below 16 years of age

and appellant committed rape upon her, passed impugned judgment of

conviction, convicting the appellant and sentencing him for the period as

mentioned in preceding paragraphs.

Cra 761 of 2002

5. Shri Rajesh Jain, learned counsel for the appellant would submit that there

was love affair between appellant and prosecutrix. From evidence available on

record, it is clearly appearing that prosecutrix on her own will went out of her

house and thereafter, travelled to different places through public conveyance,

went to Delhi. They resided there for some time and thereafter, they returned

back. In evidence, it has also come that both of them performed marriage in

temple. When prosecutrix herself is a consenting party, went away from her

house with her own will and also performed marriage in temple, alleged offence

under Sections 363, 366 and 376 of IPC would not be made out against

appellant. He also submits that on the date of incident prosecutrix was above 16

years of age. Prosecution failed to prove by cogent and reliable piece of

evidence that on the first date of incident prosecutrix was below 16 years of age.

Hence, in view of provisions of Section 375 of the IPC, prosecution failed to

prove that appellant committed offence of rape as alleged against him. Learned

counsel contended that parents of prosecutrix, examined before trial Court as

PW2, 4 and 7 could not able to prove the age of prosecutrix. Their evidence

with respect to age of prosecutrix is shaky. Though prosecution witnesses

(parents of prosecutrix) stated that date of birth of prosecutrix is entered into

Kotwari Register, but prosecution has not produced Kotwari Register to prove

date of birth of prosecutrix. Prosecution only produced school register and

mark-sheet which is not admissible piece of evidence to prove her age. He also

submits that the person who entered name and date of birth of prosecutrix in

School Register himself did not appear before the trial Court hence, School

support of his contention, learned counsel for the appellant places reliance upon

judgments passed by Hon'ble Supreme Court in cases of Birad Mal Singhvi Vs

Anand Purohit reported in AIR 1988 SC 1796, Rakesh Kumar Dongare @ Cra 761 of 2002

Chhotu Vs State of CG reported in 2006 (2) CGLJ 326, Shivcharan @ Jarha

Vs State of MP reported in 2012 (4) CGLJ 140. He lastly submits that as

offence alleged to have been committed in the year 2000 and as per law

prevailing on the said date, evidence of prosecutrix, in absence of admissible

proof of age of prosecutrix to be below 16 years of age, it cannot be held that

appellant has committed offence under Section 376(1) of the IPC. Except

aforementioned submissions, no other ground is raised by learned counsel for

the appellant before this Court.

6. Shri Vimlesh Bajpai, learned counsel for the State controverting

submissions of learned counsel for the appellant, would submit that prosecutrix

was found missing by her parents on 17.11.2020. Father of prosecutrix

immediately lodged report to concerned Police Station on 20.11.2020 ie within

three days. Referring to para 23, 24, 25 and 26 of impugned judgment, learned

State counsel submits that prosecution by placing documentary and oral

evidence, proved the age of prosecutrix to be below 16 years on the date of

incident. He also referred to evidence of PW4 and PW7 ie father and mother of

prosecutrix respectively, and would argue that parents of prosecutrix were not

much educated but they very well narrated their period of marriage, birth of

children and gap between birth of each child. Considering their evidence also,

age of prosecutrix comes to less than 16 years. He submits that when on the

date of incident prosecutrix was minor and less than 16 years of age, even if

prosecutrix consented, it is not a valid consent. In support of his contention,

learned State counsel placed reliance upon judgment passed by Hon'ble

Supreme Court in case of Independent Thought Vs Union of India and

another reported in (2017) 10 SCC 800. It is contended that impugned

judgment passed by trial Court is on correct appreciation of evidence available Cra 761 of 2002

on record and also in accordance with law. Hence, it does not call for any

interference by this Court.

7. I have heard learned counsel for the parties.

8. Learned counsel for the appellant raised two grounds in his submissions,

i) that prosecutrix is a consenting party, they were in love affair, prosecutrix went

with appellant on her own will and accompanied him, ii) prosecution failed to

prove age of prosecutrix to be below 16 years of age on the date of incident by

producing cogent and admissible piece of evidence.

9. To appreciate submissions of learned counsel for the appellant with

respect to age of prosecutrix on the date of incident, perusal of record would

show that Investigating Agency during the course of investigation, seized her

mark-sheet of Class-8, issued by the Head Master, Middle School Rogda,

District, Janjgir, which is marked as Ex.P15. Vide property seizure memo

Ex.P16, school Admission Register was seized and one certificate issued by

the Head Master of Primary School, Amgaon of Jaijaipur. Certificate issued by

the Head Master of School is based on date of birth of prosecutrix mentioned in

School register as 1st of May, 1985, having entry number 1291 in the Admission

produced before trial Court. After seizure of Admission Register of Primary

School, Amgaon from its Head Master, it was given in custody to the Head

Master of School vide Ex.P19. Prosecution examined Genduram- Assistant

Teacher of Primary School, Amgaon, District-Janjgir-Champa as PW5 before trial

Court. On the date of his examination, he produced original admission register

as Ex.P18, based upon which copy of relevant page of register is marked as Cra 761 of 2002

Ex.P18-C. This witness based on entry made in School Register proved date of

birth of prosecutrix as 01.05.1985 and date of admission in School as

15.07.1991.

10. Hon'ble Supreme Court in case of State of Chhattisgarh Vs Lekhram

reported in (2006) 5 SCC 736 has held that entry in School Register is

admissible in evidence. Paragraph-13 of aforementioned ruling is extracted

below for ready reference:

"13. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws place for some time and after the 'gauna' ceremony, she came back. The materials on record as regard the age of the prosecutrix was, therefore, required to be considered on 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."

11. Recently Hon'ble Supreme Court in case of State of Madhya Pradesh Vs

Preetam reported in (2018) 17 SCC 658 has held that School registers are

authentic documents maintained in official course and are entitled to credence of

much weight unless proved otherwise.

12. Portion of aforementioned ruling is extracted as under:

"9. In the present case evidence of prosecutrix (PW-1) is supported by the medical evidence and also by the evidence of Mangrulal (PW-4) who saw the accused running away from the scene of occurrence. Insofar as the consent of the prosecutrix (PW-1) pointed out by the High Court is concerned, we find it difficult to agree with the view taken by the High Court. In her chief examination, Dr. U.S. Vasnik (PW-6) has stated that the age of Cra 761 of 2002

the victim could be between 13 and 17 years. Of course in her cross- examination, Dr. Vasnik has agreed to the suggestion that the age of the victim could be 17 years.

(10) In our considered view, the answer elucidated in the cross-examination of Dr. Vasnik (PW-6) cannot be taken as a final opinion on the age of the prosecutrix (PW-1). It is to be relevant to note that before the trial court the prosecution has examined Bhaulal (PW-8), Head master/Head teacher of Primary School Chor Pind Ke Par, District Balaghat. In his evidence, Bhaulal (PW-8) has stated that the date of birth of the prosecutrix (PW-1) was 16th May, 1981 which means that on the date of the occurrence i.e. 6th March, 1993, the prosecutrix (PW-1) was only aged about 12 years. The trial court has neither acted upon the evidence of Bhaulal (PW-8) nor on the school certificate on the ground that the person who has admitted the prosecutrix in the school was not examined.

(11) In our considered view, the approach of the trial court was not correct. In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of head master, Bhaulal (PW-8), and the school certificate produced by him i.e. Ex.P/13-A, age of the victim has to be taken as 12 years at the time of occurrence."

13. Hon'ble Supreme Court while considering the issue with regard to prove of

age of victim with whom offence under Section 375 IPC is committed, has held

that finding of High Court that admission register suggesting date of birth of

prosecutrix maintained by private School is not admissible piece of evidence to

be not acceptable, disbelieving evidence of mother of prosecutrix and Vice

Principal of School, where prosecutrix took her education.

14. In case of State of Karnataka Vs Bantara Sudhakara @ Sudha and

another reported in (2008) 11 SCC 38 Hon'ble Supreme Court has held as

under:

Cra 761 of 2002

"11. It is to be noted that the teacher-PW 16 referred to the certificates which indicated that the date of birth of PW 1 was 5.3.1974 and the date of birth of PW2 was 1.2.1974. Exhibits P.16 & P.17 are the certificates. The High Court referred to the evidence of the lady doctor PW 24 with reference to the X- Ray report which indicated that the age of PWs. 1 & 2 fell between 14 to 16 years. The High Court observed that there was possibility of two years variation and therefore it was to be taken that the victims were more than 16 years of age. The High Court accepted that there was sexual intercourse and rejected the plea of false implication. Thereafter it went on to examine the question of consent.

12. So far as the reasonings of the High Court are concerned they border on absurdity. All types of surmises and conjectures have been arrived at. Strangely, it was observed that PW16 the Head Master's evidence was to be discarded on the ground that the date of birth may not have been recorded on the basis of any medical certificate or other documentary evidence to show that these two girls were born on the date as mentioned. The High Court's conclusions in this regard are not only fallacious but contrary to the evidence on record. The High Court recorded a further finding that the two certificates may not relate to the victims though it specifically recorded that there was no such challenge raised by the accused. Additionally, merely because the doctor's evidence showed that the victims belong to the age group of 14 and 16, to conclude that the two years age has to be added to the upper age limit is without any foundation. There was no basis for coming to such a conclusion. In any event, the accused persons did not take the stand that there was any consent. On the contrary, they pleaded that they were falsely implicated. In State of H.P. v. Shree Kant Shekari [2004 (8) SCC 153] it was observed as follows:

13. The factors which seem to have weighed with the High Court are

(i) the age of the victim, which according to the High Court was more than 16 years; xxxxx

14. We shall first deal with the question of age. The radiological test indicated age of the victim between 15 to 16 years. The school records were produced to establish that her date of birth was 10.4.1979. The relevant documents are Ex.PW6/A to PW6/C. The High Court was of the view that these documents were not sufficient to establish age of Cra 761 of 2002

the victim because there was another document Ex.PW7/A which according to the High Court did not relate to the victim. Merely because one document which was produced by the prosecution did not, according to the High Court relate to the victim that was not sufficient to ignore the evidentiary value of Ex.PW6/A to Ex.PW6/C. These were records regarding admission of the victim to the school and her period of study. These documents unerringly prove that the date of birth of the victim as per official records was 10.4.1979. Therefore, on the date of occurrence and even when the FIR was lodged on 20.11.1993 she was about 14 years of age. Therefore, the question of consent was really of no consequence.

15. In aforementioned ruling Hon'ble Supreme Court has held that School

registers as being maintained by government officials in discharge of their official

duty when proved by oral evidence of Teacher /Head Master of School to be

admissible in evidence. To prove age of prosecutrix in case of such nature,

entire facts and circumstances are to be taken into consideration along with oral

as well as documentary evidence brought on record by prosecution.

16. Perusal of date of birth mentioned in ExP15 and 18-C would show that

date of birth of prosecutrix is mentioned as 01.05.1985 and date of alleged

incident is prior to 17.11.2000 as appearing from evidence of prosecutrix PW1.

Hence, even if considering date of incident to be 17.11.2000 when prosecutrix

left her house, on the said date she was only 15 years 6 months and 16 days, ie

below 16 years of age. Making sexual intercourse with a girl below the age of 16

years with or without consent is an offence in view of the sixth description under

Section 375 of IPC prevailing on the date of incident. Consent in view of

provisions of Section 375 of the IPC of a girl below 16 years of age is no

consent.

Cra 761 of 2002

17. Section 35 of Evidence Act deals with relevancy of entry in public record

made in performance of duty. Conditions to be fulfilled before applying Section

35 of the Act or it should be in nature of i) Entry in any public or office register, ii)

It must state a fact, issue or relevant fact, iii) entry must be made either by

public servant in discharge of his/her official duty or by any person in

performance of a duty, especially enjoined by the law of the country and iv) All

persons concerned indisputably must have an access thereto.

18. In the case at hand, prosecutrix got admission in a Government School.

Her date of birth is recorded in School Admission register much prior to the date

of incident. Entry of date of birth was made by a government servant. Date of

birth is proved by producing School register and examining the In-charge Head

Master of the School to prove entries of School register. In view of the nature of

evidence brought on record by the prosecution, it cannot be disbelieved merely

because the birth entry of Kotwari register is not produced. When School

the School register Ex.P18 is maintained by Government official in discharge of

their official duty, it is admissible in evidence under Section 35 of the Evidence

Act. Hon'ble Supreme Court in case of Umesh Chandra Vs State of Rajasthan

reported in (1982) 2 SCC 202 has held as under :

"7. We agree with the High Court that in cases like these, ordinarily the oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. To this extent, we agree with the approach made by the High Court.

Xxxxxxx Cra 761 of 2002

9. It is, however, not disputed that at the time when the appellant was born, his father was posted in a small village (Dausa) where the maternal grandfather of the appellant had lived and perhaps he was not meticulous enough to report the birth of his children. There is nothing to show the birth of the appellant nor any evidence has been produced on this aspect of the matter. There is also nothing to show that the dates of birth of the other children of Gopal (the father) were registered in any Municipal register or in chowkidar's register. We have mentioned this fact because the High Court seems to have laid special stress and great emphasis on the non-production of any reliable record to prove that the birth of the appellant had been entered therein. It is common knowledge that in villages people are not very vigilant in reporting either births or deaths and, therefore, an omission of this type cannot be taken to be a most damaging circumstance to demolish the case of the appellant regarding his actual date of birth.

10. The first document wherein the age of the appellant was clearly entered is Ext. D-1 which is the admission form under which he was admitted to class III in St. Teressa's Primary School, Ajmer. In the admission form, the date of birth of the appellant has been show a as 22.6.1957. The form is signed by Sister Stella who was the Headmistress. The form also contains the seal of the school, DW, Ratilal Mehta, who proved the admission form, has clearly stated that the form was maintained in the ordinary course of business and was signed only by the parents. The evidence of Ratilal Mehta (DW 1) is corroborated by the evidence of Sister Stella (DW 3) herself who has also endorsed the fact of the date of birth having been mentioned in the admission form and has also clearly stated on oath that the forms were maintained in regular course and that they were signed by her. She has also stated that at the time when the appellant was first admitted she was the headmistress of St. Teressa Primary School, Ajmer. The High Court seems to have rejected this document by adopting a very peculiar process of reasoning which apart from being unintelligible is also legally erroneous. The High Court seems to think that the admission forms as also the School's register (Ext. D-3) both of which were, according to the evidence, maintained in due course of business, were not admissible in evidence because they were not kept or made by any public officer. Under Section 35 of the Evidence Act, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only. The High Court seems to have Cra 761 of 2002

confused the provisions of Sections 35, 73 and 74 of the Evidence Act in interpreting the documents which were admissible not as public documents or documents maintained by public servants under Sections 34, 73 or 74 but which were admissible under Section 35 of the Evidence Act which may be extracted as follows:

"35. Relevancy of entry in public record made in performance of duty An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such books, register or record is kept, is itself a relevant fact." (emphasis supplied)

11. A perusal of the provisions of Section 35 would clearly reveal that there is no legal requirement that the public or other official book should be kept only by a public officer but all that is required is that it should be regularly kept in . 8discharge of her official duty. This fact has been clearly proved by two independent witnesses, viz., DW 1, Ratilal Mehta and DW 3, Sister Stella. The question does not present any difficulty or complexity as in our opinion the section which would assist in this behalf is Section 35 of the Evidence Act which provides for relevancy of entry in the public record. In this connection we may refer to a decision of this Court in Mohd. Ikram Hussain v. State of U.P., where Hidayatullah, J. speaking for the Court, observed as under:

"In the present case Kaniz Fatima was stated to be under the age of

18. There were two certified copies from school register which show that on June 20, 1960, she was under 17 years of age. There was also the affidavit of the father (here evidence on oath) stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam." (emphasis supplied)

19. In case at hand, though father and mother of prosecutrix have not

specifically stated date of birth of prosecutrix in itself will not make entry of Date

of birth in Admission Register of Government Primary School when they are Cra 761 of 2002

stated to be illiterate or very low educated persons. Samaru, grandfather of

prosecutrix PW2 in his evidence has very specifically stated the date of birth of

prosecutrix, which is also corroborated with documentary evidence Ex.P18-C

and Ex.P15 wherein date of birth of prosecutrix is mentioned as 1 st May, 1985.

Learned counsel for the appellant except submissions made by him that date of

birth of prosecutrix could not be proved by admissible piece of evidence could

not able to establish as to why documentary evidence placed on record by

prosecution ie Ex.P15 and P18-C and proved by PW5 Genduram, Assistant

Teacher-cum-Head Master of School are not admissible.