Chattisgarh High Court
Sanjay Chouhan vs State Of Chhattisgarh on 14 November, 2024
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2024:CGHC:44517
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
(Judgment reserved on 12.11.2022)
(Judgment delivered on 14.11.2022)
CRA No. 329 of 2003
1 - Sanjay Chouhan, S/o Purshottam Chouhan, aged about 26 years, Resident of
village Manikpur Colony C.H. - 101, Thana Korba, District Korba (Chhattisgarh)
... Appellant
versus
1 - State of Chhattisgarh through Police Station Korba, Chhattisgarh ...
Respondents
For the appellant : Mr. Rahil Kochar and Mr. Leekesh Kumar, Advocates For the State : Mr. Sachidanand Yadav, Panel Lawyer (SANJAY KUMAR JAISWAL, JUDGE) C A V Judgment
1. This appeal is directed against the Judgment of conviction and order of sentence dated 20.02.2003 passed by the Second Additional Sessions Judge (Fast Track Court) Korba in Sessions Trial No.78 of 1997 whereby the appellant has been convicted under section 376 IPC and sentenced to undergo R.I. for 10 years along with fine of Rs.1000/-, in default of payment of fine to further undergo R.I. for six months.
2. By impugned judgment, co-accused Yadav Prasad has been acquitted of the Digitally A signed by ANNAJEE A RAO ANNAJEE RAO 2/7 charge u/s 376(2)(g) IPC by the trial Court.
3. The prosecution case, in brief, is that on 21.10.1996, the prosecutrix (P) along with her parents, younger brother and grand parents had all gone to a Dashera fair to see the burning of effigy of Ravan, which is called as Ravan Dahan fair. At the fair, her brother went away to wander with his friends. The prosecutrix told her mother that she is going to purchase ground-nuts for her mother and had gone. It is alleged, at that time, accused/appellant Sanjay Chauhan of her same locality met her and told that her brother is being beaten up and asked her to go there. Then the prosecutrix accompanied the accused Sanjay who took her towards to a pond (Pokhari) where co-accused Yadav Prasad met them. Near the pond both the accused forcibly caught the girl and brought her to a nearby Hill where despite her dissent, appellant Sanjay removed her inner vest. When the girl started shouting, accused Sanjay pressed her mouth. At that time co-accused Yadav Prasad was standing at some distance. It is alleged that Appellant Sanjay fell down her on the ground and committed forcible sexual intercourse thereby the skirt of the girl became wet. Thereafter, co-accused Yadav Prasad came to her and asked to fulfill his sexual desire as has been done with appellant Sanjay. On being refused by her to fulfill such demand of sexual intercourse, she was slapped by co-accused Yadav Prasad and said that he will not let her go. Then accused Sanjay pushed her and made her fall. Any how, the prosecutrix fled away and reached to the shop of P.W.5 Chamar Singh where she fell down. P.W.5 Chamar Singh sent message to her father (P.W.2) and called him. Thereafter she was taken to her house where she narrated the incident to her parents. Consequently, a report was lodged in Police Station at 22.15 hours on the date of incident.
4. The accused pleaded innocence and claimed to be tried. The prosecution examined as many as 19 witnesses on its behalf and exhibited 19 documents. In defence, the accused examined two witnesses and exhibited two documents. The learned Additional Sessions Judge, after evaluating evidence convicted and sentenced the accused Sanjay Chouhan u/s 376 of IPC while acquitting accused 3/7 Yadav Prasad u/s 376(2)(g) IPC.
5(i) Learned counsel for the appellant submits that the girl was major on the date of incident and she was a consenting party to the sexual act performed with the appellant Sanjay Chouhan. He submits that in the fair of Dashara, a large number of people gathered there and the people present there would certainly have rushed to help her, if the act was done with force. He further submits that the prosecutrix did not raise any alarm while she was being taken by the appellant and she herself voluntarily accompanied the accused and participated in performance of sexual act. 5(ii) So far as the age is concerned, learned counsel for the appellant refers to the statement of School Head P.W.6 R.K. Bhattacharjya and submits that as per the entry made in Dakhil-Kharij Register (Ex.P-7-C) issued by the Primary School, he has mentioned the Date of Birth of the victim girl to be 20.07.1981 and this witness is not the author of the document. Therefore, the prosecution has not been able to conclusively prove the minority of prosecutrix and the impugned judgment and conviction needs interference by this Court.
6(i) Per contra, learned State Counsel submits that the appellant has committed forcible sexual intercourse with the girl, therefore, the offence u/s 376 IPC is made out.
6(ii) So far as the age of girl is concerned, he refers to the copy of entries made in Dakhil Kharij Register produced vide Ex.P-7-C and submits that the DoB of prosecutrix was recorded as 20.07.1981 in Ex.P-7C which was proved by the School Head Master P.W.6 R.K. Bhattarya. Therefore, on the date of incident, the victim was above 15 years and below 16 years of age. Hence, the judgment of conviction and sentence passed by the trial Court is well merited which does not call for any interference.
7. I have heard learned counsel for the parties and have also perused the records.
8. Prosecutrix (P.W.1) in her court statement confirmed the incident against the appellant but in cross examination, she has admitted that she was seen with the 4/7 appellant by co-accused Yadav Ram and therefore she felt bad thinking that she will be defamed. In paragraph 46 of her cross examination, she has also admitted that during the trial, she had appointed a lawyer on her behalf and the lawyer had explained to her how to speak in the court statement. On the basis of the statement of prosecutrix and all other evidence adduced, the trial Court has found that the prosecutrix was consenting party to the incident took place with the appellant Sanjay Chauhan and since co-accused Yadav Prasad had seen her, the report was made and thus from the entire evidence on record, no error is reflected in the opinion/conclusion of the trial Court that the prosecutrix was consenting party to the act performed with accused Sanjay Chauhan.
9. The appellant has been convicted by the trial Court under Section 376 IPC on the ground that at the time of the incident the prosecutrix was found to be a consenting party of below 16 years of age, therefore, it is mainly a matter of consideration as to whether the prosecution has been able to prove that the prosecutrix was a minor below 16 years of age at the time of incident ? The prosecutrix (PW-1) herself has not been able to tell her date of birth in her court statement. She has told her birth year as 1981. Her father (P.W.2) has also not told any date of birth of the prosecutrix. In cross examination, he says that he had told the date of birth of the prosecutrix to the Kotwar, but no Kotwai register has been certified or proved in the records. The father (P.W.2) has also deposed that he does not remember who had gone to get the prosecutrix admitted in the school. The copy of entries made in School admission/discharge (Dakhil-Kharij) register which has been certified by the School Head Master is proved as Ex.P-7 in the records. Therefore, what would be its legality and evidentiary value has to be considered.
10. The School Head Master of Manikpur Mr. R.K. Bhattarjee, is examined as P.W.6. He has deposed that on the basis of the entry made in the Dakhil Kharij register, the DoB of prosecutrix was recorded as 20.07.1981 and the copy of entries made in the register has been seized vide Ex.P-7-. He has further stated in 5/7 cross examinations that on the basis of Transfer Certificate issued by the Primary School, the DoB of the girl was mentioned. It was further stated that Primary School, Bhilai Khurd is a school being run under the control of Tribal Welfare Department, by which the said Transfer Certificate was issued. He further admits that when admissions of students are done in the Class-I, then the same is done through Tatima system. He admitted the fact that on the basis of declaration-form, admissions to Class I is done and the DOB is recorded, for which, no certificate is necessary. However, the statement of P.W.6, would show that he was not the author of document (Ex.P-7C) and it has not been stated that he was present while her initial admission was made in the school. It is well settled legal proposition that the entry in the Dakhil Kharij register cannot be relied upon unless its probate value in terms of provisions of section 35 of the Evidence Act is proved.
11. The Supreme Court in Babloo Pasi v. State of Jharkhand (2008) 13 SCC 133 held that the School register is relevant and admissible but is not of much evidentiary value in absence of the material on which the age was recorded. Para 28 is relevant and quoted below:
"28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely : (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the School register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See Birad Mal Singhvi v. Anand Purohit 1988 Supp SCC 604."
(Emphasis supplied)
12. Further 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 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 6/7 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 :-
"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."
13. Hon'ble the Apex Court in the matter of Alamelu & Another Vs. State represented by Inspector of Police, (2011) 2 SCC 385 held that "the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 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 the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case that the date of birth mentioned in the transfer certificate 7/7 would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined".
14. Applying the above legal position to the facts of present case for determining the age of victim, this Court is of the considered view that the admissibility of the documents i.e., Dakhil Kharij register or the Transfer Certificate which is issued by Government Primary School is of not much evidentiary value to prove the age of prosecutrix in absence of material on which the age was recorded. Even the Head Master (P.W.6) is not the author of document (Ex.P-7C. Therefore, this benefit would lean in favour of the appellant and appreciation of the entire evidence would show that the prosecution has failed to conclusively prove that the victim was minor (under 16 years) on the date of incident.
15. In view of the foregoing discussion, this Court is of the considered view that the prosecutrix was a consenting party inasmuch as the prosecution has not been able to conclusively prove the age of prosecutrix to be below 16 years. Therefore, no offence is made out against the appellant under Section 376 IPC. Accordingly, the impugned judgment of conviction and order of sentence against the appellant cannot be sustained and is set aside. The appellant is acquitted of the charges u/s 376 of IPC.
16. In the result, the appeal is allowed. If the appellant is on bail, his bail bonds shall continue for a further period of 6 months as per Section 437-A of Cr.P.C.
17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary action, if any.
Sd/-
(Sanjay Kumar Jaiswal) Judge Rao