Chattisgarh High Court
Bharat Lal vs State Of Chhattisgarh on 11 November, 2024
1/7
2024:CGHC:43836
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 746 of 2004
1 - Bharat Lal, Son of Ful Singh, Caste Halba, aged about 26 years, resident of village
Sirpur, Tahsil and Police Station Dondilohara, District Durg (Chhattisgarh) ... Appellant
versus
1 - State of Chhattisgarh through Police Station Dondilohara, District Durg (Chhattisgarh)
... Respondent
For Appellant : Mr. Praveen Dhurandhar, Advocate
For Respondent : Mrs. Smita Jha, Panel Lawyer
(SANJAY KUMAR JAISWAL, JUDGE)
Judgment on Board
11/11/2024
1. This appeal is directed against the Judgment of conviction and order of sentence dated 03.09.2004 passed by the Additional Sessions Judge, Balod in Sessions Trial No.56 of 2003 whereby the appellant has been convicted under sections 363 and 366 of IPC and sentenced to undergo R.I. for 5 years and R.I. for 5 years and to pay a fine of Rs.1000/- on each count with further default stipulations.
2. The prosecution case, in brief, is that when the daughter of complaint Kanshi Ram did not return to the house, he lodged a report in Police Station Dondilohara 2/7 on 22.11.2002 on which the police registered Missing Report of his daughter and started investigation. Thereafter, the victim was recovered from the possession of accused Bharatlal at Police Station Aarmori (Maharashtra) by Recovery Panchnama vide Ex.P-,1 pursuant to which, FIR relating to the incident was registered by the Police vide Ex.P-2. Subsequently the marks sheet was seized from victim (H) vide Ex.P.5 and thereafter the statement of witnesses were recorded by the Police. After completing investigation, the charge sheet was filed in the Court of JMFC, Balod under sections 363 & 366 of IPC.
3. The accused pleaded innocence and claimed to be tried. The prosecution examined as many as 7witnesses and exhibited 8 documents. The learned Additional Sessions Judge, after evaluating evidence convicted and sentenced the accused as mentioned in para-1.
4(i) Learned counsel for the appellant submits that the prosecutrix was a consenting party as she has not raised any alarm while she was being taken by the appellant and she herself voluntarily accompanied the accused and travelled with him to a long distance from one place to another.
4(ii) So far as the age is concerned, learned counsel for the appellant refers to the statement of School Principal Smt. C. P. Masih (P.W.6) and submits that P .W. 6 has categorically deposed the fact that on the basis of 5 th Class Transfer Certificate of prosecutrix, her date of birth was recorded, 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. 5(i) Per contra, learned State Counsel submits that the appellant has enticed away the girl from the lawful custody of her parents and forcibly took her away to other States where he committed bad deeds with her, thereby, the offence under section 363 and 366 of IPC is is made out.
5(ii) So far as the age of girl is concerned, she refers to the copy of entries made in Dakhil Kharij Register produced vide Ex.P-8 wherein the DoB of prosecutrix was recorded as 27.05.1986 which was proved by the Principal of the School Smt. C.P. 3/7 Masih (P.W.6) as also the marks sheet seized from the prosecutrix and submits that on the date of incident, the victim was minor and was below 18 years of age. Therefore, the judgment of conviction and sentence passed by the trial Court is well merited which does not call for any interference.
6. I have heard learned counsel for the parties and have also perused the records. The victim (H) is examined as P.W.4. She has stated that the accused threatened her and took her from Lohara to Nandgaon by bus and thereafter she was taken from Rajnandgaon to Nagpur by train and then from Nagpur to Vapi where they stayed for 20 days and thereafter they she was taken from Vapi to Ahmadabad where they stayed for 3 to 4 days. She has further deposed that after staying at Ahmadabad, they returned to Rajnandgaon by train and then they had returned to Lohara. She has further stated that they had reached to Police Station Dondilohara where the recovery panchnama was made. She has further stated that her marks sheet (Ex.P-4) was seized vide Ex.P-5 where she put her signatures at A to A. She has further categorically stated that the accused did not commit any bad deed with her. At para 6 of her cross examination, she has admitted that she did not inform to any of the travellers about the incident while they were going by bus from Lohara to Rajnandgaon. Again she admits the fact that neither she informed while travelling in Train nor told to the slum dwellers of Ahemadabad and Vapi where they stayed about the incident of her being enticed away by the accused. She further admits the fact that the accused brought her back along with him in the same way as they had gone together.
7. She has further deposed at Para 7 that when she returned to her home with the accused, her father along with 8-10 persons were sitting in the house and wrote an agreement and she does not know what was exactly written in the agreement. She further admits the fact that after returning from Gujarat, she was not kept in the village and was kept at a distant place in an Ashram and thereafter she was brought from Ashram and was kept at her uncle's village Nargi.
8. Perusal of the statement of prosecutrix clearly reflects that she was taken 4/7 from one place to another by Bus and Train and while travelling either by Bus or Train or during their stay at Ahmadabad and Vapi, she did not raise any voice against the accused about the incident of her being enticed away by the accused Therefore, it appears that the prosecutrix is a consenting party.
9. So far as the age of the prosecutrix is concerned, the School Principal Smt. C.P. Masih is examined as P.W.6. She has deposed that according to the entry made in the Dakhil Kharij register, the DoB of prosecutrix was recorded as 27.05.1986 and the copy of entries made in the register has been seized vide Ex.P-
8. She has further stated in her cross examinations that admissions of students in their school are being made from Class VI to Class X. She further admits the fact that merely on the basis of 5th Class Transfer Certificate, the DoB of prosecutrix was recorded. However, the statement of P.W.6, would show that she was not the author of document and it has not been stated that she 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.
10. 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 5/7 was recorded. (See Birad Mal Singhvi v. Anand Purohit 1988 Supp SCC 604."
(Emphasis supplied)
11. Further the Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana, reported in 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 :-
"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 6/7 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."
12. 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 would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined".
13. 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. 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 on the date of incident.
14. So far as the allegation of offence u/s 363 & 366 IPC is concerned, the evidence of prosecutrix would show that she has admitted that she has voluntarily accompanied the accused without raising any voice against him either while travelling in Bus or in Train or during their stay at the places where they stayed in other States. Therefore, it appears that she was consenting party.
15. In view of the foregoing discussion, this Court is of the considered view that the prosecution has not been able to make out the allegations under sections 363 7/7 and 366 IPC against the appellant. Accordingly, the appellant is acquitted of the charges u/s 363 and 366 of IPC and the impugned judgment of conviction and order of sentence cannot be sustained and is set aside.
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