Allowed¶24

Shyam Bihari v. State of Chhattisgarh

Chhattisgarh HC23 Jun 2024CRA/1061/2002

Case brief

AI extract

What is this about?

Age determination of prosecutrix; dakhil kharij panji / school register evidentiary value; Section 35 Evidence Act; consent of prosecutrix; abduction for compelling marriage (S.363, S.366 IPC); rape of girl alleged below 18 (S.376(2)(g) IPC); wrongful confinement (S.342 IPC); benefit of doubt and acquittal; Section 374(2) Cr.P.C. appeal; Section 437-A Cr.P.C. bail bond; conviction set aside; High Court of Chhattisgarh, single judge, Sessions Trial No.288/2002, Ambikapur.

What did the court decide?

Appeal allowed; impugned judgment of conviction and order of sentence dated 30/09/2002 set aside; appellant acquitted of the charges; bail bond to remain in force for six months as per Section 437-A of the Cr.P.C. ¶24

Shyam Bihari Vs State of Chhattisgarh — Bail and Remand | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the prosecutrix accompanied and stayed with the appellant of her own will, i.e., whether she was a consenting party. +1 more

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Court's answer

On the basis of the statements of the above witnesses (including the prosecutrix's own conduct and the defence witnesses DW-1 to DW-3), the prosecutrix appears to be a consenting party who went with the appellant of her own will.

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Ratio / Principle

The burden of proving that the prosecutrix was less than 16 or 18 years of age at the time of the incident rests upon the prosecution.

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Key takeaways

The date of birth recorded in the Dakhil Kharij Panji (Ex.P-12 & Ex.P-12A) has no legal evidentiary value, as the Headmaster who wrote the date of birth was not examined, and neither the prosecutrix nor her father could state her exact date of birth.ratio¶22
The evidence presented by the prosecution is not valid, reliable and clear to establish that on the date of incident the prosecutrix was less than 16 or 18 years of age; the prosecutrix being a consenting party, the prosecution case is not proved against the appellant beyond reasonable doubt.ratio¶23

Detailed headnote1 paragraphs

Criminal Appeal No. 1061 of 2002, High Court of Chhattisgarh, Bilaspur (Sanjay Kumar Jaiswal, J.), decided 24-06-2024 — Appeal under Section 374(2) Cr.P.C. against judgment dated 30-09-2002 of the 1st Additional Sessions Judge, Ambikapur (Sessions Trial No.288/2002) convicting the appellant under Sections 363, 366, 376(2)(g) and 342 IPC (sentences of R.I. 3, 7, 10 and 1 years, concurrent) for abducting the prosecutrix (PW-4) to compel marriage and raping her, she being alleged to be below 18. Held: (i) from the prosecutrix's own statement and the defence witnesses (DW-1 Head Constable, DW-2 Lanja, DW-3 Jamuna Prasad Yadav), she went with the appellant of her own will and appeared to be a consenting party; (ii) the burden of proving age below 16/18 lay on the prosecution; the Dakhil Kharij Panji (Ex.P-12 & P-12A) date-of-birth entry had no legal evidentiary value because the Headmaster who made the entry was not examined and neither the prosecutrix nor her father (PW-5) could state her exact date of birth — in line with Manak Chand alias Mani v. State of Haryana (2023 SCC OnLine SC 1397), Alamelu (2011) 2 SCC 385, Birad Mal Singhvi (AIR 1988 SC 1796), Babloo Pasi (2008) 13 SCC 133 and Sunil v. State of Haryana (2010) 1 SCC 742; (iii) prosecution failed to prove minority and the case was not proved beyond reasonable doubt. Appeal allowed; conviction and sentence set aside; appellant acquitted; bail bond to remain in force six months under Section 437-A Cr.P.C.

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1061 of 2002

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Shyam Bihari, S/o Patu Ram Yadav, aged about 25 years, Occupation-agriculturist, R/o Village:Bhusu Bharadnand Para, Sitapur, P.S. Sitapur, District Surguja Ambikapur, Chhattisgarh

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---- Appellant

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Versus

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The State of Chhattisgarh

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---- Respondent

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For Appellant : Mr. A.K. Prasad, Advocate. For Respondent-State : Ms. Sunita Manikpuri, Dy.G.A.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Order on Board

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24-06-2024

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This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 30-09-2002, passed by learned 1^st Additional Sessions Judge, Ambikapur, District: Surguja (C.G.), in Sessions Trial No.288/2002, whereby the appellant-accused has been convicted as under:-

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Conviction	Sentence
U/s 363 of the IPC	R.I. for 3 years.

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U/s 366 of the IPC	R.I. for 7 years
U/s 376(2)(g) of the IPC	R.I. for 10 years.
U/s 342 of the IPC	R.I. for 1 year

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All the sentences are directed to run concurrently.

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As per prosecution story, on the date of incident i.e. 03.03.2002, the prosecutrix is said to have been aged below 18 years. Facts of the case, in brief is that the Appellant had abducted the prosecutrix (PW-4) to compel her for marriage from the lawful guardian-ship of her father (PW-5). On 3-3-2002 at about 12 p.m. from village Bhusu, it is alleged that the Appellant taken the prosecutrix with him for 18 days in a house of a Uraon in the nearby forest and used to committed rape upon her against her will. The Court marriage between the prosecutrix and the appellant has taken place during her stay with the help of Bal Bhagwan, Shyambihari, Ramsharan, Kamla Pandit, Santosh and the court marriage was reported to the police by the couple. On 23.03.2002, a Panchayat meeting of Yadav community Surguja was held and the prosecutrix got released from the appellant from where she went back with her husband Gopal Yadav. Thereafter, on 23.03.2002 itself, i.e. after 20 days of the incident, the prosecutrix reported the matter to the concerned Police Station vide Ex.P-5. On the basis of said report, FIR (Ex. P-6) has been registered against the Appellant. In Dakhil Kharij Panji (Ex.P-12 & Ex.P-12 A) , date of birth of the prosecutrix is mentioned as 01.02.1987. Medical examination of prosecutrix was conducted. After completion of investigation, charge sheet was filed.

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During the course of trial, in order to bring home the of f ence, the prosecution has examined as many as 11 witnesses and exhibited 18 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. The appellant has examined total 3 witnesses in his defence.

¶21

After hearing both the parties, the trial court passed the impugned judgment of conviction and order of sentence.

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Learned counsel for the appellant submits that the date of birth of prosecutrix (PW-4) is not proved. In the present case, Dakhil Kharij Panji (Ex.P-12 & Ex.P-12 A), which has been seized regarding the date of birth of prosecutrix has not been verified by any competent authority. It has been exhibited only on the basis of statement of Headmaster, Shyam Prasad Gupta (PW-8), whereas that document was not written by him. Shyam Prasad Gupta, has also been unable to tell the exact date of birth of the prosecutrix. No document was produced as to on what basis other legal documents the date of birth of prosecutrix (PW-4) was recorded in the Dakhil Kharij Panji . To verify the age of the prosecutrix, her medical examination was not conducted. Thus, as date of birth of prosecutrix (PW-4) was not proved, the prosecution has failed to prove that the prosecutrix was minor at the time of the incident. In support of his submission, he referred the judgment rendered by the Hon’ble Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397. He further submitted that prosecutrix was

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consenting party though prosecution has failed to prove its case, the appellant may be acquitted of the charges leveled against him by setting aside the judgment of conviction and order of sentence.

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On the other hand, the learned counsel for the State submits that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed.

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Heard learned counsel for the parties and perused the record with utmost circumspection.

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Firstly, if looking to the statement of prosecutrix (PW-4), she stated that on 3-3-2002 at about 12 p.m. from village Bhusu the Appellant had abducted her to compel her for marriage and kept her with him for 15 days in a house of Uraon in the nearby forest and committed rape upon her against her will. During that time the appellant not allowed her to go outside the home and he arranged food from nearby village Nakna. After 15 days, the Appellant taken her to his brother-in-law’s house and kept her there for three days where he again raped upon her. She further stated that thereafter Bal Bhagwan, Shyambihari, Ramsharan and Pattu threatened her and forcefully conducted her court marriage with the Appellant. Thereafter she forced to reported the marriage to the Police at Sitapur. Thereafter, along with Appellant and one police personnel, she was taken to the house of the Appellant and it was told by the police personnel that she have to spent

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her whole life with the Appellant. After 2-4 days, a meeting of Yadav community was held, where she was asked to whom she wants to stay with, she agreed to live with her first husband Gopal Yadav and denied to live with the Appellant. She further stated that in a meeting of Yadav community, total 150 members were present. Thereafter, after 20 days of the incident, the matter was reported by her to the concerned police station vide Ex.P-5.

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The prosecutrix (PW-4) has admitted in her crossexamination that she know the Appellant since long. She went to village Nakna along with the Appellant on her legs. In a house of Uraon where the Appellant said to have been kept her for 15 days, she has not told him that the Appellant had abducted her. She traveled with the Appellant in a bus as well as in a cycle. She signed the Court marriage document in advocate’s home. She narrated the entire incident to her parents after 15-20 days of the incident. Thus, it is clear from the statement of prosecutrix that she herself went to the appellant on her own will. She stayed at the house of Uraon for 15-18 days where she never complained to anyone. Also, she traveled with the appellant from various public places like bus stand and also traveled in the bus as well as in cycle, but she never opposed or complained against the appellant anywhere. In such a situation, on the basis of her statement, prosecutrix appears to be a consenting party.

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10.Dr. Shipra Shrivastava (PW-7) who medically examined the prosecutrix, in her Court statement stated that the prosecutrix was aged about 18 years, her hymen was old ruptured and she was habitual to sexual intercourse.

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11.Head Constable Sibal Say (DW-1) in his Court statement stated that the Appellant and the prosecutrix had produced an affidavit before him stating therein that both of them have performed marriage with each other. Thereafter, this witness dropped the prosecutrix to her home as her missing report was already lodged. He further stated that when he dropped the prosecutrix to her home, her mother denied to keep her as she was joined the company of the Appellant. Further, during that time the prosecutrix has also not told this witness about abducting her by the Appellant.

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12.Lanja (DW-2) in his Court statement also stated that 5-6 months back, the Appellant and the prosecutrix came to him and requested him to give them shelter, as this witness know them, therefore, he agreed to kept them for 15 days. After 1-2 days when this witness asked to the prosecutrix about their visit, then she told him that against her will, her father performed her marriage, therefore, she is with the Appellant. The prosecutrix has also told this witness that after performing Court marriage, they came to his house.

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13.Jamuna Prasad Yadav (DW-3), in his Court statement stated that on 22.03.2002, a meeting of Yadav community had conducted in which the appellant and the prosecutrix were present and the prosecutrix stated that she herself went and living with the Appellant on her own will then the members of the meeting told her that you are already a married women, go back to your first husband then she agreed to do the same. In the said meeting it was also decided that the Appellant shall pay Rs.10,000/- as fine to

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the prosecutrix and when the Appellant denied to give Rs. 10,000/-, a report was lodged against him and within a week he arranged the amount of Rs.10,000/- and given it to father of the prosecutrix. On the basis of statements of above witnesses, the prosecutrix appears to be a consenting party.

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14.If the prosecutrix is a consenting party then the offence will be made only if she is under 16 or 18 years of age?

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15.The burden of proving the age of prosecutrix less than 16 or 18 years at the time of incident, is upon on the prosecution. In this context, prosecutrix herself was unable to tell her date of birth and her father (PW-5) was also unable to tell the date of birth of prosecutrix and said that he does not remember her date of birth. In this case, to prove the age of prosecutrix, Headmaster Shyam Prasad Gupta (PW-8) in his cross-examination has stated that Dakhil Kharij Panji ( Ex.P-12-A) has not been lodged by him. He further stated that parents of the students, used to write their son/daughter age according to them. Father of the prosecutrix (PW-5) in his Court statement stated that the prosecutrix is her daughter and she is aged about 15 years, he solemnized her marriage before 1 year and her gauna is not made. In paragraph 9, this witness further stated that her daughter’s age is 15 years not 18 years and he solemnized her marriage in 15 years and thereafter, the Appellant taken the prosecutrix with him.

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The Supreme Court in the matter of Manak Chand alias Mani v. 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

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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.

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“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.”

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15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the

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school register was not sufÏcient 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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Hon’ble the Apex Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has held that:-

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“ 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. ”

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Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held that:-

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“ to render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other ofÏcial book, register or record, secondly, it must be an

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entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his ofÏcial duty, or any other person in performance of a duty specially 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 to 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. ”

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How, dakhil-kharij register is treated to be relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another (2008) 13 SCC 133, wherein it has been held as under:-

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“22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.

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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 ofÏcial 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 ofÏcial duties, or

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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 (1997) 4 SCC 24 ) . ”

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The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:-

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“ 26. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.

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34. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case. ”

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In the light of the above judgments, considering the evidence presented regarding the age of prosecutrix (PW-4),

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it is clear that prosecutrix (PW-4) herself and her father (PW-5) have been unable to tell the exact date of birth. The school admission register (Ex. P-12 & P-12 A) has not been duly proved as the prosecutrix (PW-4) herself and his father (PW-5) were not able to made statement regarding the exact date of birth of the prosecutrix at the time of admission in the school and the Head Master who made entry in the Dakhil Kharij Panji has not been examined to prove the said Dakhil Kharij Panji. Furthermore, considering the evidence of Headmaster Shyam Prasad Gupta (PW-8) who stated that he was not registered the date of birth of the prosecutrix in school register (Ex. P-12 A). He himself stated that an affidavit of parents of the students were usually filed regarding date of birth of the students but on the date of his Court statement, he was not produced any affidavit of the parents. He further stated that in the affidavit filed by the parents, they fill date of birth of the children as per their own convenience. We consider the age of 6 years for admission in school. We make the children hold their ears with their hands above their heads and those children who hold their ears are considered 6 years old.

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In this situation, the date of birth recorded in the Dakhil Kharij Panji has no legal evidentiary value as the Headmaster who written the date of birth of the prosecutrix has not been examined.

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In view of above, the evidence presented by the prosecution in this case is not valid, reliable and clear evidence to establish the fact that on the date of incident, age of the prosecutrix was less than 16 or 18 years. In this case, prosecutrix was a consenting party. Consequently, case of

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prosecution is not proved against the appellant beyond reasonable doubt.

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Accordingly, the appeal is allowed and the impugned judgment dated 30/09/2002 passed by the trial Court convicting and sentencing the appellant for the offence as mentioned in paragraph 1 of this judgment, is hereby set aside. The appellant is acquitted of the charges leveled against him.

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It is reported that the appellant is on bail, the bail bond of the appellant shall remain in force for six months as per the provisions of Section 437-A of the Cr.P.C.

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26. Let a certif i ed copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary action, if any.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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Shubham

Shyam Bihari v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shyam Bihari v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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