Chattisgarh High Court
Santosh Banjare vs State Of Chhattisgarh on 10 November, 2022
1
Judgment Reserved on 12.08.2022
Judgment Pronounced on 10.11.2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.1340 of 2016
• Santosh Banjare S/o Agrahit Banjare, Aged About 23 Years R/o
Village Sukuldaihan, Police Station Lalbagh, District
Rajnandgaon, Chhattisgarh.
---- Appellant
Versus
• State Of Chhattisgarh Through Station House Ofcer, Police Of
Police Station Lalbagh, District Rajnandgaon, Chhattisgarh.
---- Respondent
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For Appellant : Shri Abhishek Shrama, Adv.
For Respondent : Shri Vinod Tekam, Panel Lawyer
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CAV Judgment
Hon'ble Shri Justice Sachin Singh Rajput
1. Assailing the legality, correctness, judicial propriety of the
impugned judgment of conviction and award of sentence
dated 04.08.2016 passed in Special Sessions Trial No.
78/2014 by the learned Additional Sessions Judge (FTC) and
Special Judge, Protection of Children from Sexual Ofences
Act, 2012, Rajnandgaon, C.G., whereby the appellant has
been convicted and sentenced in the following manner:-
Conviction Sentence
Under Section 363 of Indian Rigorous Imprisonment for 7
Penal Code, 1860 years and fne amount of Rs.
2,000/- and in default of payment
of fne further additional
imprisonment of 6 months.
Under Section 366(A) of Rigorous Imprisonment for 10
Indian Penal Code, 1860 years and fne amount of Rs.
2,000/- and in default of payment
of fne further additional
imprisonment of 6 months.
Under Section 376 (2) (ढ) of Rigorous Imprisonment for 10
Indian Penal Code, 1860 years and fne amount of Rs.
2,000/- and in default of payment
of fne further additional
imprisonment of 6 months.
Under Section 6 of RI for 10 years and fne amount of
Protection of Children from Rs. 2,000/- and in default of
Sexual Ofences Act, 2012. payment of fne further additional
imprisonment of 6 months.
(All sentences directed to run concurrently)
Facts of the case
2. The prosecution story in brief is that the complainant/father
of prosecutrix (PW-1) was residing in village Sukuldaihaan
and was working as labour and agriculturist. He has two sons
and two daughters. Both his sons Shravan and Parasram and
elder daughter Girja are married. His younger
daughter/victim (PW-2) has studied upto class 6th and her
date of birth is 16.04.1997 and she is 16 years old. It is
alleged that on 31.03.2013 at about 11 am the victim (PW-2)
had gone to the feld to answer the nature's call but did not
return home till 2 pm. Thereafter, a search was made by her
father in the village but she was not found. In the meanwhile,
Jeeturam Dewangan (not examined) and Ankaluram
Deshlahare (PW-5) told him that at about 1 pm they saw the
victim (PW-2) going along with the appellant towards Pendry
village. Thereafter, the complainant went to the house of the
appellant to inquire into the matter but he was not found
therein. It is alleged by the complainant that the victim who
is minor was abducted by the accused/appellant on the
pretext of marriage. On the information provided by the
complainant to the police, the FIR (Ex.P-1) was registered
against the accused/appellant for the ofence under Sections
363 and 366 IPC.
3. After completion of investigation, the charge-sheet was fled
against the accused/appellant under Sections 363, 366 and
376 IPC and Section 4,6 of the POCSO Act. Learned Court
below, framed the charge against the appellant under
Sections 363, 366-A, 376 (2)(ढ) and 493 IPC and Section 6 of
the POCSO Act. The accused/appellant however, denied the
charges levelled against him and claimed for trial.
4. So as to establish its case, the prosecution has examined as
many as many 12 witnesses and exhibited 22 documents.
The statement of the accused/appellant under Section 313
CrPC was also recorded where he pleaded his innocence and
false implication in the case. Defence however, did not
examine any witness in supports of its case.
5. By the judgment impugned learned Court below has held the
accused/appellant guilty and imposed the sentence as
described above which is challenged before this Court by the
appellant.
Submissions on behalf of the appellant
6. Counsel for the appellant made the following submissions :-
(a) Counsel for the accused/appellant submits that the
fndings recorded by the Court below convicting the
accused/appellant for the ofences as referred to above,
being not based on just and proper appreciation of the
evidence of the witnesses cannot be made to stand and
are liable to be set aside. He submits that learned Court
below has failed to consider contradiction and omission
in the evidence of the witnesses examined by the
prosecution and thus has committed an error of law
while holding the accused/appellant guilty.
(b) He submits that the prosecution has not been able to
prove by adducing cogent and clinching evidence that
on the date of incident the prosecutrix was below 18
years of age. Learned counsel for the appellant further
submits that the accused/appellant has not taken the
prosecutrix away, rather it is she who went with him out
of her own volition and thus was a consenting party to
the act of the appellant.
(c) To fortify this submission learned counsel for the
appellant submits that during her journey to several
places in the company of accused/appellant by bus, by
train or even by foot, she must have met number of
people including the police people but she did not
disclosed to them about her being taken away by force.
Learned counsel for the appellant further submits that
to prove the case of the prosecution had relied upon the
mark-sheet as Article A but as it is not a public
document, it cannot be made a basis for that because it
should have been issued by the authority who
maintained the record. In supports of the arguments
advanced by counsel for the appellant, the reliance in
place on the decision of the Apex Court in the matters of
Birad Mal Singhvi Vs. Anand Purohit1 and State of
Madhya Pradesh Vs. Munna @ Shambhoo Nath 2
and Satpal Singh Vs. State of Haryana3.
Submissions on behalf of the respondent State
7. On the other hand counsel for the State made the following
submissions:
(a) Learned State counsel supports the judgment impugned
and submits that the fndings of conviction and
sentence of the appellant recorded by the court below
are based on the due appreciation of the record and
therefore, no interference therewith is required in this
appeal.
(b) He further submits that the prosecution has duly proved
the age of the prosecutrix to be below 18 years on the
date of incident by producing her mark-sheet marked as
Article A duly proved by her father (PW-1), and
therefore, also the judgment impugned is fully justifed.
8. I have heard learned counsel for the parties, considered their
rival contentions and perused the record meticulously with
utmost circumspection.
Analysis and Conclusions
9. The frst question to be decided by this Court is whether the
prosecutrix was below 18 years of age and as such minor, on
the date of incident? In this regard the prosecution has
examined father of the prosecutrix (PW-1), who has stated in
his deposition that date of birth of his daughter (prosecutrix)
is 16.04.1997. To substantiate this fact, he has produced the
1 1988 (Supp.) SCC 604
2 (2016) 1 SCC 696
3 (2010) 8 SCC 714
mark-sheet marked as Article A issued by Head Master,
Government Primary School Sanjari, Block Dondilohara,
District Durg, CG, which also contains her date of birth as
16.04.1997. The proscutrix (PW-2) has stated that she did not
remember her date of birth as it was got recorded in the
school by her father (PW-1). She however has stated that at
the time of incident she was minor.
10. The Hon'ble Supreme Court in case of Satpal Singh Vs.
State of Haryana (Supra) held as under:-
20. A document is admissible under Section 35 of the Indian Evidence
Act, 1872 (hereinafter called as 'Evidence Act') being a public
document if prepared by a government official in the exercise of his
official duty. However, the question does arise as what is the
authenticity of the said entry for the reason that admissibility of a
document is one thing and probity of it is different.
22. Therefore, a document may be admissible, but as to 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.
The aforesaid legal proposition stands fortified by the judgments of
this Court in Ram Prasad Sharma Vs. State of Bihar AIR 1970 SC
326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram &
Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr.
Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh
Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of
Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR
2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu
Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that
even if the entry was made in an official record by the concerned
official in the discharge of his official duty, it may have weight but still
may require corroboration by the person on whose information the
entry has been made and as to whether the entry so made has been
exhibited and proved. The standard of proof required herein is the
same as in other civil and criminal cases. Such entries may be in any
public document, i.e. school register, voter list or family register
prepared under the Rules and Regulations etc. in force, and may be
admissible under Section 35 of the Evidence Act as held in Mohd.
Ikram Hussain Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and
Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.
28. Thus, the law on the issue can be summerised 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 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 the same remains as in any other civil and criminal case.
In case of Birad Mal Singhvi Vs. Anand Purohit ( Supra) it
was held that the entries regarding dates of birth contained in
the scholar's register and the secondary school examination
have no probative value, as no person on whose information the
date of birth of the aforesaid candidates was mentioned in the
school record is examined.
In case of Jarnail Singh Vs. State of Haryana 4 the Hon'ble
Supreme Court held as under:-
"23. Even though Rule 12 is strictly applicable only to determine the
age of a child in conflict with law, we are of the view that the aforesaid
statutory provision should be the basis for determining age, even for a
child who is a victim of crime. For, in our view, there is hardly any
difference in so far as the issue of minority is concerned, between a
child in conflict with law, and a child who is a victim of crime.
Therefore, in our considered opinion, it would be just and appropriate
to apply Rule 12 of the 2007 Rules, to determine the age of the
prosecutrix VW-PW6. The manner of determining age conclusively,
has been expressed in sub-rule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child is ascertained, by adopting
the first available basis, out of a number of options postulated in Rule
12(3). If, in the scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect over an option
expressed in a subsequent clause. The highest rated option available,
would conclusively determine the age of a minor. In the scheme of
Rule 12(3), matriculation (or equivalent) certificate of the concerned
child, is the highest rated option. In case, the said certificate is
available, no other evidence can be relied upon. Only in the absence
of the said certificate, Rule 12(3), envisages consideration of the date
of birth entered, in the school first attended by the child. In case such
an entry of date of birth is available, the date of birth depicted therein
is liable to be treated as final and conclusive, and no other material is
to be relied upon. Only in the absence of such entry, Rule 12(3)
postulates reliance on a birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if such a certificate is
available, then no other material whatsoever is to be taken into
consideration, for determining the age of the child concerned, as the
said certificate would conclusively determine the age of the child. It is
only in the absence of any of the aforesaid, that Rule 12(3) postulates
the determination of age of the concerned child, on the basis of
medical opinion".
11. In light of the above principles of law as highlighted, it is to
be determined whether the prosecution was able to prove the
age of prosecutrix as below 18 years. In order to prove the
date of birth of the prosecutrix, prosecution examined her
father (PW-1). He has proved Article A which is the Mark-sheet
cum certifcate of District Primary Certifcate Examination,
2009. It was issued by the Head Master of Government
Primary School, Sanjari, Block - Dondi Lohara (C.G.). It also
contains the signature of Secretary, District Primary
Certifcate Examination, District Durg (C.G.) and District
4(2013) 7 SCC 263
Education Ofcer, District Durg (C.G.). Article A clearly refects
the date of birth of prosecutrix as 16.04.1997. Apart from this
father of prosecutrix (PW-1) also deposed that at the time of
incident prosecutrix was aged about 16 years. He further
deposed that date of birth of prosecutrix is 16.04.1997. He
stated that he has noted the date of birth of all his children.
He also deposed that he has admitted the prosecutrix in the
school. He denied the suggestion that at the time of
admission of prosecutrix in school he has informed her date of
birth and age by a guess. He also deposed that as per his
knowledge her daughter never failed during study. Prosecutrix
(PW-2) has deposed that she does not remember her date of
birth. She has studied at Sukuldaihan Primary School, Sanjari.
Her father has recorded her date of birth in the School. Mark
sheet cum certifcate (Article-A) was for the examination year
of 2009. Date of birth of prosecutrix mentioned in Article A is
16.04.1997. Therefore, in light of the above discussion and
judgments of the Hon'ble Supreme Court Article-A can be
relied upon to prove the age of the prosecutrix as it is
prepared by a government ofcial in the exercise of his ofcial
duty. Hence, the prosecution was able to prove that on the
date of incident, the prosecutrix was less than 18 years.
12. The next question which is required by this Court is whether
the accused/appellant made physical relations with the
prosecutrix with or without consent? The best witness to
prove this fact can be the prosecutrix herself. She has stated
that appellant took her forcibly from Sukuldaihan by
allurement. She further stated that appellant continuously
committed wrong act (committed physical relation like
husband and wife). Appellant took her on the pretext of
marriage but did not marry to her. She was subjected to
lengthy cross examination. She has stated in her deposition
that she and the accused visited several places by several
means such as by train, by bus and by walk. She has further
stated that where ever they stayed, they used to go for labour
work. She stated that when appellant took her at that time
she was minor. Her evidence further goes to show that the
accused/appellant also ill-treated her and quite often
subjected her to beat also. After careful examination of the
prosecutrix, it appears that she remained frm with regard to
physical relation committed by the appellant. Since the
prosecutrix is found to be less than 18 years therefore, her
consent has no signifcance. Though the medical evidence
does not support the case of prosecution, it would not be fatal
to prosecution. On examination of the statement of
prosecutrix in its entirety she appears to be credible witness.
13. The learned trial court after due appreciation convicted and
sentence the appellant as aforesaid. The fnding recorded by
the learned trial court do not appear to be perverse. Hence,
no interference is called for in this appeal.
14. As a consequence of the above discussion the appeal fails
and is hereby dismissed.
Sd/-
(Sachin Singh Rajput)
Judge
parul
