Chattisgarh High Court
Sukhalram Dewangan vs State Of Chhattisgarh on 20 June, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
Neutral Citation
2024:CGHC:20503-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on :10/06/2024
Judgment delivered on : 20/06/2024
Criminal Appeal No. 1280 of 2021
Sukhalram Dewangan, son of Amarsai Dewangan, aged
about 23 years, resident of Village-Rampur (Ramgarhpara),
Police Station-Odgi, District-Surajpur (CG)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh, through the Station House Officer,
Police Station-Surajpur, District-Surajpur (CG)
For Appellant : Mr. Mahendra Dubey, Advocate
For State : Mr. Abhishek Singh, Panel Lawyer
Division Bench:
Hon'ble Shri Justice Goutam Bhaduri, J
Hon'ble Smt. Justice Rajani Dubey, J
CAV Judgment
Per Rajani Dubey, J
The appellant has filed the instant appeal challenging the
legality and validity of the judgment of conviction and order of
sentence dated 21.10.2021 passed by Additional Sessions Judge,
Fast Track Special Court, Surajpur in Special Sessions Case
No.29/2020 whereby the appellant stands convicted and
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sentenced as under:
Conviction Sentence
Under Section 363 of Indian Penal RI for 07 years, pay a fine of
Code. Rs.200/- and in default thereof to
suffer additional RI for 04 months.
Under Section 366-A of Indian RI for 10 years, pay a fine of
Penal Code. Rs.200/- and in default thereof to
suffer additional RI for 04 months.
Under Section 313 of Indian Penal RI for 10 years, pay a fine of
Code. Rs.200/- and in default thereof to
suffer additional RI for 04 months.
Under Section 6 of Protection of RI for 20 years, pay a fine of
Children from Sexual Offences Rs.200/- and in default thereof to
Act, 2012. suffer additional RI for 04 months.
All the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that on 19.05.2020 the
prosecutrix made a written complaint (Ex.P/1) at Police Station-
Surajpur to the effect that the appellant has been committed
forcible sexual intercourse with her for the last one year on the
pretext of marriage and when she asked him for marriage, he
refused. Based on this report, FIR (Ex.P/2) was registered against
the appellant on the same date under Sections 363, 366, 376 of
IPC and Section 6 of Protection of Children from Sexual Offences
Act, 2012 (in short "the Act of 2012"). With the consent of mother
of the prosecutrix, medical examination of the prosecutrix was
done and in respect of her age, copy of Dakhil-Kharij register of
Primary School, Jobga was seized vide Ex.P/6. Statement of the
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prosecutrix was recorded under Section 164 of CrPC vide Ex.P/7.
The appellant was arrested on 9.6.2020 and subjected to medical
examination wherein he was found capable of performing sexual
intercourse vide Ex.P/16. After completing usual investigation,
charge sheet was filed against the accused/appellant under
Sections 363, 366, 376 of IPC and Section 6 of the Act of 2012.
The trial Court framed charges under Sections 363, 366A, 376(3)
(2)(n), 313 of IPC and Sections 4(2) & 6 of the Act of 2012 against
appellant, to which he abjured his guilt and prayed for trial.
03. In order to prove its case, the prosecution examined 09
witnesses. Statement of the accused/appellant was also recorded
under Section 313 of CrPC in which he denied all the
incriminating circumstances appearing against him in the
prosecution case, pleaded innocence and false implication.
However, no witness was examined by him in defence.
04. Learned trial Court after hearing counsel for the respective
parties and considering the material available on record, by the
impugned judgment convicted and sentenced the appellant as
mentioned in para 1 of this judgment.
05. Learned counsel for the appellant would submit that the
impugned judgment is perverse, erroneous and contrary to the
oral and documentary evidence available on record. It ought to
have seen that author of the entry made in the Dakhil-Kharij
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register as to the date of birth of the prosecutrix has not been
examined by the prosecution and being so, it cannot be said
conclusively that she was minor on the date of incident. The
prosecutrix has also not supported the prosecution case and has
turned hostile. He has submitted that according to the medical
report, no external or internal injury was found over the body of
the prosecutrix. Learned trial Court has failed to appreciate the
fact that the doctor (PW-6) has not given any specific opinion
regarding abortion of the prosecutrix. There are several omission
and contradiction in the statements of the prosecution witnesses
which were not considered properly by the learned trial court.
Therefore, the impugned judgment is liable to be set aside and
the appellant be acquitted of all the charges.
06. On the other hand, learned counsel for the State supporting
the impugned judgment submits that the prosecution based on the
oral and documentary evidence adduced by it has duly proved the
fact that prosecutrix was below 18 years of age on the date of
incident and she was subjected to repeated forcible sexual
intercourse by appellant on the pretext of marriage and when she
conceived, he administered some medicine to her for abortion.
Being so, the impugned judgment of the learned trial Court
warrants no inference by this Court and the present appeal is
liable to be dismissed.
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07. Heard learned counsel for the parties and perused the
material available on record.
08. The prosecution examined 9 witnesses in all to prove its
case against the appellant. PW-1 prosecutrix has stated in her
examination-in-chief that the appellant committed rape on her
repeatedly on the pretext of marriage and subsequently refused to
marry her. She states that when he was committing rape on her in
the forest, at that time two persons caught them and by giving
them money, they were gagged. When she conceived, the
appellant forcibly administered Mifty Kit to her as a result of which
she suffered abortion. In her cross-examination she admits that
her mother and other relatives went to the house of the appellant
to persuade him for marrying her as he had refused to marry her.
She admits that had she been married to the appellant, she would
not have lodged report against him. She states that she did not
make any statement before the Magistrate regarding her
abduction or administration of medicine by the appellant to her for
abortion.
09. PW-2 mother of the prosecutrix states that the appellant had
abducted her daughter (prosecutrix) on the pretext of marriage
and committed rape on her but later on he refused to marry her.
She states that the prosecutrix consumed the pills for abortion at
the instance of the appellant as a result of which she suffered
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abortion. In cross-examination she admits that they went to the
house of the appellant for fixing the marriage of the prosecutrix
with him and there it was decided that their marriage would be
done in Baishakh month. She admits that they did not lodge any
report against the appellant when he abducted the prosecutrix.
10. The appellant is said to have been making sexual
intercourse with the prosecutrix for the last one year of lodging the
report. According to the prosecutrix, it was done on the pretext of
marriage. In her deposition she has stated that when the appellant
was committing rape on her in the forest, two persons caught
them and by giving them money, they were gagged. It has also
come in the evidence of the prosecutrix and her mother that they
alongwith other family members went to the house of the
appellant for the purpose of her marriage with him and if the
marriage had been solemnized, they would not have lodged any
report. Mother of the prosecutrix has admitted that when the
appellant eloped with the prosecutrix, they did not lodge any
report.
11. Taking into account the evidence of the prosecutrix and her
mother, conduct of the prosecutrix during the alleged incident and
subsequent thereto, the manner in which the incident is said to
have taken place, it appears that the prosecutrix was a consenting
party to the act of the appellant and as such, no offence of rape or
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abduction is made out against the appellant.
12. Now this Court proceeds to examine on the basis of
evidence on record whether on the date of incident the prosecutrix
was a minor?
13. The prosecutrix (PW-1) has stated that her date of birth is
25.1.2004 which is recorded in her marksheet and her mother
(PW-2) states that she only remembers the year of birth of the
prosecutrix i.e. 2004. In para 4, PW-2 admits that she is stating
the prosecutrix to be 17 years at the instance of the Guruji
(teacher) and that she does not know the exact age of the
prosecutrix.
The prosecution has heavily relied upon the entry made in
Dakhil-Kharij register of Primary School, Jobga, regarding date of
birth of the prosecutrix. Though in the said register, her date of
birth is recorded as 25.1.2004, but PW-4 Head Master of the
school has admitted that he did not record the name or date of
birth of the prosecutrix in the Dakhil-Kharij register and also has
no knowledge as to who did this. He admits that no document
pertaining to date of birth of the prosecutrix is attached with the
said register and there is also no mention in the register as to on
what basis her date of birth is recorded.
14. The Hon'ble Apex Court in the matter of Alamelu and
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another Vs. State, represented by Inspector of Police, (2011)
2 SCC 385 observed in paras 40 & 48 of its judgment 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 the absence of the material on the basis of which the
age was recorded.
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 purpose of
litigating before a civil forum e.g. necessity of being
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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 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."
15. The Supreme Court in the matter of Manak Chand alias
Mani vs. State of Haryana, 2023 SCC Online SC 1397 has
reiterated the law laid down by it in the matter of Birad Mal
Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed
that the date of birth in the register of the school would not have
any evidentiary value without the testimony of the person making
the entry or the person who gave the date of birth. It was further
reiterated that if the date of birth is disclosed by the parents, it
would have some evidentiary value but in absence the same
cannot be relied upon. For sake of brevity para No. 14 & 15 of the
judgment are reproduced hereunder:-
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"14 This Court in Birad Mal Singhvi v. Anand Purohit
(1988) Supp SCC 604 had observed that the date of
birth in the register of a school would not have any
evidentiary value without the testimony of the person
making the entry or the person who gave the date of
birth.
"14.... The date of birth mentioned in the scholar's
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 in 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. In our opinion, the proof submitted by the prosecution
with regard to the age of the prosecutrix in the form of the
school register was not sufficient to arrive at a finding that
the prosecutrix was less than sixteen years of age,
especially when there were contradictory evidences
before the Trial Court as to the age of the prosecutrix. It
was neither safe nor fair to convict the accused,
particularly when the age of the prosecutrix was such a
crucial factor in the case."
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16. In light of aforesaid decisions of the Hon'ble Supreme Court,
we find that in the present case, there is no such clinching and
legally admissible evidence brought on record by the prosecution
to prove the fact that the prosecutrix was minor on the date of
incident, yet the learned trial Court has recorded in the impugned
judgment that she was minor. Hence we set aside the finding so
recorded by the learned trial Court and hold that the prosecution
has not been able to prove successfully that on the date of
incident she was minor.
17. As regards the offence under Section 313 of IPC, in her
written report (Ex.P/1) the prosecutrix has nowhere stated that
due to rape being committed on her by the appellant she
conceived which was got aborted by the appellant through
administration of some medicine. Further, in her statement under
Section 164 of CrPC (Ex.P/7) also she has not stated about her
abortion by the appellant. There is also no conclusive medical
evidence to substantiate the above allegation. Thus, keeping in
view of the nature of oral and documentary evidence in this
regard, this Court finds it difficult to hold the appellant guilty of the
offence under Section 313 of IPC.
18. On the basis of aforesaid discussion, this Court is of the
opinion that the prosecution has failed to prove that the
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prosecutrix was minor on the date of incident and the evidence on
record suggests that she was a consenting party to the act of the
appellant. As such, the learned trial Court was not justified in
holding the appellant guilty under Sections 363, 366A, 313 of IPC
and Section 6 of the Act of 2012. Being so, the appeal is allowed
and the impugned judgment is, accordingly, set aside. The
appellant is acquitted of all the aforesaid charges. He is reported
to be in jail since 9.6.2020, therefore, he be set free forthwith if not
required in any other case.
Sd/ Sd/
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
Khan
