[Cites 11, Cited by 0]
Chattisgarh High Court
Hori Lal vs State Of Chhattisgarh on 23 March, 2026
Author: Rajani Dubey
Bench: Rajani Dubey
1
Digitally
signed by
AMIT
2026:CGHC:13724
PATEL
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 214 of 2008
Hori Lal S/o Shri Purshottam Sahu, aged about 19 years, R/o Village-
Mardkathera, Police Station- Gandai, District- Rajnandgaon (C.G.)
... Appellant
versus
State Of Chhattisgarh through District Magistrate- Durg (C.G.)
... Respondent/State
_____________________________________________________________
For Appellant : Mr. Praveen Dhurandhar, Advocate appears
through Legal Aid.
For State : Mr. Avinash Singh, G.A.
_____________________________________________________________
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
23.03.2026
1. Considering that this case has been pending since 2008 and no one
appears for the appellant today, in these circumstances, the Court
directs Shri Praveen Dhurandhar, learned Panel Lawyer to assist the
Court and contest the matter on behalf of the appellant.
2. The Secretary, High Court Legal Aid Committee is directed to appoint
Shri Praveen Dhurandhar, Advocate to contest the matter on behalf of
the appellant and authorization letter in this regard be also issued.
3. This appeal is preferred under Section 374 (2) of the Code of Criminal
Procedure, 1973 against the judgment dated 29.08.2007 passed by
learned Fourth Additional Sessions Judge, Durg in Sessions Trial No.
89/2007, wherein the said Court convicted the appellant and sentenced
him as under :-
Conviction Sentence
Under Section 376 of IPC R.I. for 07 years and fine of Rs. 500/-,
in default of payment of fine, to
undergo additional R.I. for three
months.
Under Section 363 of IPC R.I. for 03 years and fine of Rs. 500/-,
in default of payment of fine, to
undergo additional R.I. for three
months.
Under Section 366 of IPC R.I. for 05 years and fine of Rs.
1000/-, in default of payment of fine,
to undergo additional R.I. for six
months.
(All the sentences are directed to run concurrently)
4. The prosecution case, as per the records and the impugned judgment,
is that on 12.02.2007, the father of the prosecutrix lodged a missing
report at Police Station- Bhilai-3, alleging that the appellant had taken
his daughter by allurement and the matter was taken up for
investigation by the police. During the investigation, information was
received that the prosecutrix was living with the appellant in Village
Maradkather. She was recovered and stated that the appellant had
committed forcible sexual intercourse with her. Based on her statement,
a report under Section 376 IPC was lodged and she underwent medical
examination. The accused was arrested and subjected to medical
examination. The clothes worn by the accused and the prosecutrix at
the time of the incident were seized and the prosecutrix's vaginal slide
was sent for chemical analysis. The prosecution after completing the
due and necessary investigation, led the charge-sheet before the
concerned Jurisdictional Magistrate, who, in turn, committed the case
for trial. On the basis of the material contained in the charge-sheet,
learned trial Court framed charges against the appellant for alleged
commission of offence under Sections 363, 366 and 376 of IPC. The
appellant/accused having abjured guilt was subjected to trial.
5. In order to establish the charges against the accused persons, the
prosecution has examined as many as 08 witnesses. The statement
under Section 313 of Cr.P.C. of the appellant has been recorded, in
which he denied the incriminating charges leveled against him and
pleaded his innocence that he has been falsely implicated in this case.
However, two witness examined by him in his defence.
6. The learned trial Court after hearing the counsel for the respective
parties and considered the material available on record thereby
convicted and sentenced the accused/appellant as mentioned in
inaugural para of this judgment. Hence, this present appeal.
7. Assailing correctness and validity of the impugned judgment of
conviction and order of sentence, learned counsel for the appellant
submits that the impugned judgment is contrary to the law, facts and
circumstances of the case. The prosecution has failed to prove the age
of the prosecutrix beyond reasonable doubt. The only document relied
upon is the school register, but the person who wrote the date of birth at
the time of admission was not examined. Therefore, the age mentioned
in the school record cannot be treated as reliable proof. The admitted
position emerging from the record is that the prosecutrix and the
appellant were in a consensual relationship. The evidence clearly
indicates a prior love affair, which probabilizes the defence version and
renders the prosecution story doubtful. There is an unexplained delay in
medical examination as the alleged incident took place on 12.02.2007,
but the examination was conducted on 21.02.2007. The doctor has not
found any signs supporting forcible intercourse, as such, prosecution
has utterly failed to prove its case beyond reasonable doubt and
findings recorded by learned trial court are highly perverse. So, the
impugned judgment is liable to be set aside.
8. Ex adverso, learned counsel for the respondent/State supporting the
impugned judgment submits that learned Trial Court after minutely
appreciating the oral and documentary evidence has rightly convicted
and sentenced the appellant. So, there is no scope for interference by
this Court. This appeal being without any merit is liable to be dismissed.
9. Heard learned counsel for the parties and perused the material
available on record including the impugned judgment.
10. It is evident from record of learned learned trial Court that it framed
charges for offence punishable under Sections 363, 366 and 376 of IPC
against the present appellant and after appreciation of oral and
documentary evidence, learned trial Court convicted the appellant for
for the aforesaid offences.
11. The learned trial Court finds that on the date of incident prosecutrix was
aged about 15 years, 04 months and 12 days and learned trial Court
relied upon the statement of Rakesh Kumar Pandey (PW-4), who is the
In-charge of Principal of Govt. Middle School, Dabrapara and Exhibited
P/-5-A, an attesting copy of Dakhil Kharij register.
12. Rakesh Kumar Pandey (PW-4) Principal of Govt. Middle School,
Dabrapara, Bhilai-3, District - Durg (C.G.) has stated that he was
posted in school since 1994 as a Teacher and the police seized Dakhil
Kharij Register on 16.06.2007 and as per the said register, the
prosecutrix's name was entered in Page No. 14 at Serial No. 75 and
her date of birth is mentioned as 01.10.1991. Seizure memo is Ex. P/4,
attesting copy of register is Ex. P/5 and Progress report card of Class-
VIth is Article-A.
In his cross-examination, he admitted as under:-
" मूल दाखिल ख़ारिज रजिस्टर क्र. 75 से 78 तक का लेख मेरे हाथ का नहीं
है। यह सही है कि दाखिल ख़ारिज पंजी के क्र. 75 में XX के पहले NN नाम
लिखा हुआ है जिसे काटकर XX लिखा गया है।.."
13. Thus, it is clear from the statement of PW-4 that he was not the author
of the entry made of the prosecutrix and no any relevant/supporting
documents were filed by the prosecution to prove the entry that was
made in the said register.
14. PW-2 mother of the prosecutrix has stated that police seized progress
report card of Class-VIth of her daughter with regard to the date of birth.
15. In this case, except Ex.P/5-A and Article-A, no other relevant/supporting
documents regarding the date of birth of the prosecutrix was produced
by the prosecution to prove the age of the prosecutrix below 18 years.
16. The Hon'ble Apex Court in the matter of Alamelu and another Vs.
State, represented by Inspector of Police, (2011) 2 SCC 385
observed in paras 40, 42, 43, 44 & 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 thePrincipal. 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.
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, 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:-
"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. ThePrincipal 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. 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
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."
17. In the light of above judgment, it is clear that PW-4 has admitted that in
the said register, entry was not made by him with regard to the date of
birth of the prosecutrix (PW-1) and also the author of the entry made in
the said register was not examined by learned trial Court and so far as
regards the age of the prosecutrix except Article-A and Ex. P/5-A
nothing was produced to prove the same. Therefore, there is lack of
clinching and admissible evidence to hold her minor on the date of
incident.
18. Prosecutrix (PW-1) has stated in her deposition that on the date of
incident the accused called her over the phone to meet her and then
she went with the accused to Durg by bus and susequently from Durg
to Dhamdha and Dhamdha to Gandai, where she lived with the
accused for about 12 days and the accused made sexual relationship
with her, though she denied, but he did it forcefully.
When the Court asked questioned, she answered as under:-
" न्यायालय द्वारा :- जब तुम्हारा कोई संबंध अभि० से नहीं था तब तुम उसके कहने
पर बिना अपने माता पिता को बताये अभियुक्त के घर 12 दिन तक कैसे रही पूछे जाने
पर साक्षी कहती है कि उसका अभियुक्त के साथ प्रेम सम्बंध था इस कारण उसके
कहने पर उसके साथ उसके घर गई थी। "
In her cross-examination, she admitted that she did not create
any scene anywhere on the way from Bhilai-3 to village of the
accused, she went with the accused quietly and peacefully. Further
admitted that she was living peacefully and was affectionate with the
accused in his house for about 12 days.
19. Thus, statement and conduct of the prosecutrix (PW-1) clearly shows
that she is a consenting party to the act of the appellant.
20. Dr. Ujjawala Dewangan (PW-7), who examined the prosecutrix (PW-1),
opined that the prosecutrix was habitual of sexual intercourse and
thereby gave her report vide Ex. P/4.
In her cross-examination, she admitted that she did not find any
internal or external injury on the body of the prosecutrix.
21. The conduct of the prosecutrix clearly shows that she is the consenting
party to the act of the appellant and also medical evidence has not duly
corroborated with the prosecution case, therefore, under these
circumstances of the case as also evidence on record, it would be
improper to this Court to hold that the appellant has committed rape
upon her, rather it reflects from the evidence that the prosecutrix herself
had made consensual sexual intercourse with the appellant. Thus, the
learned trial Court did not appreciate all these facts minutely and
thereby has wrongly convicted the appellant for the aforesaid offences.
22. Ex consequenti, the appeal is allowed and the impugned judgment
dated 29.08.2007 of the learned trial Court is hereby set aside. The
appellant is acquitted of the charges leveled against him.
23. The appellant is reported to be on bail. However, keeping in view the
provisions of Section 481 of BNSS, 2023 the appellant is also directed
to furnish a personal bond for a sum of Rs. 25,000/- with one surety 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 thereon shall
appear before the Hon'ble Supreme Court.
24. The Trial court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary
action.
Sd/-
(Rajani Dubey)
JUDGE
AMIT PATEL
