Allowed

Ajay Parihar @ Banti @ Kaushlendra v. State of Chhattisgarh

Chhattisgarh HC22 Jul 2024CRA/1243/2018

Case brief

AI extract

What is this about?

Criminal appeal challenging conviction for rape and POCSO offences. High Court acquitted all appellants as prosecution failed to prove prosecutrix was a minor and evidence regarding age and consent was unreliable.

What did the court decide?

Impugned judgment of conviction and sentence set aside. All appellants acquitted and released forthwith if not detained in another case.

Ajay Parihar @ Banti @ Kaushlendra Vs… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1243 of 2018

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Ajay Parihar @ Banti @ Kaushlendra, aged about 20 years, S/o Shiv Ram Parihar, R/o- Divyapur (Sanjay Nagar) Post Divyapur District Oraiya (U.P.) Present Address- Thelkadih Sukhit Yadav Ka Makan, Post Khairagarh, DistrictRajnandgaon, Chhattisgarh

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Kishan Sahu, aged about 22 years, S/o Thanu Sahu, R/oKhadkhadi, Thana Bagnadi, District- Rajnandgaon, Chhattisgarh

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Suraj Yadav, aged about 23 years, S/o Manglu Ram Yadav, R/o- Kumhar Para Churiya Thana Churiya, DistrictRajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh

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---- Appellants

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Versus

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State of Chhattisgarh Through- Police Station A. JA. K., Supela, District- Durg, Chhattisgarh

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---- Respondent

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: For Appellant No.1 Mr. B.P. Singh, Advocate For Appellants No.2 & 3 : Dr. Kumaresh Tiwari, Advocate For State : Mr. Ankur Kashyap, Dy. Govt. Advocate

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

Judgment on Board

(23.07.2024)

Sanjay Kumar Jaiswal, J.

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The present Criminal Appeal is preferred against the judgment dated 27.06.2018 passed by the learned 5^th Additional Sessions Judge/Special Judge under the POCSO Act, Durg District Durg (C.G.) in Special Sessions Trial No. 36/2016 whereby the appellants have been

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convicted as under:-

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Appellant’s Name	Conviction	Sentence & fine
	U/s 363 of IPC	RI for 3 years and fine of Rs.500/- in default, further RI for 3 months
Ajay Parihar @ Banti @ Kaushlendra	U/s 366 of IPC	RI for 3 years and fine of Rs.500/- in default, further RI for 3 months
	U/s 376(n) of IPC	Imprisonment for life (rest of natural life) and fine of Rs.10,000/- in default, further RI for 3 months
	U/s 6 of POCSO Act	Imprisonment for life (rest of natural life) and fine of Rs.10,000/- in default, further RI for 3 months
Suraj Yadav	U/s 363/34 of IPC	RI for 3 years and fine of Rs.500/- in default, further RI for 3 months
and Kishan Sahu	U/s 366/34 of IPC	RI for 3 years and fine of Rs.500/- in default, further RI for 3 months
	U/s 376(d) of IPC	Imprisonment for life (rest of natural life) and fine of Rs.10,000/- in default, further RI for 3 months
	U/s 6 of POCSO Act	Imprisonment for life (rest of natural life) and fine of Rs.10,000/- in default, further RI for 3 months
All the s	entences are directed to run	concurrently

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The facts of the case are briefly as follows that the prosecutrix (PW-1) was a student of class VIII. Her age was around 15-16 years. She lived with her family in Kosanagar, Supela, Bhilai, District-Durg. Her father had passed away. The prosecutrix contacted appellant no. 1 Ajay Parihar alias Bunty alias Kaushalendra through mobile phone who was a resident of Village - Thelkadih, Police Station - Khairagarh, District - Rajnandgaon, Chhattisgarh. On the call of appellant no. 1 Ajay, the minor prosecutrix (PW-1) went to Rajnandgaon on 30/10/2015, where appellant Ajay lived in a rented house. After the disappearance of the prosecutrix, her mother (PW-2) reported her missing report to the concerned police station on 31/10/2015, on which a First Information Report (Exhibit P-7) was registered. In a rented house in Rajnandgaon, appellant No. 1 Ajay kept the prosecutrix (PW-1) with him for 2-3 days and committed rape upon her. There, appellant No. 1 Ajay's friends, appellant No. 2 Kishan Sahu and appellant No. 3 Suraj Yadav also came, then appellant No. 1 Ajay introduced her to them as his sister. When the prosecutrix was walking to Bhilai on 2/11/2015 at 3:00 PM, the appellants Suraj Yadav and Kishan Sahu came from behind on a motorcycle and said

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that they will drop her at the bus stand, made her sit in the middle of the motorcycle and took her to the hill where both of them raped her. Thereafter, they left her in the motorcycle at Nehru Nagar Chowk, Supela after threatening her. Then she reached home at around 6:00 AM and told the incident to her family members. Then the recovery panchanama (Exhibit P-1) of the prosecutrix from her house was prepared. After taking her consent, a medical examination was conducted. Statement was recorded under Section 161 of the Code of Criminal Procedure. The appellants were medically examined. Their mobile phones were seized. The slide prepared by the doctor was sent for chemical examination. Ossification test was conducted to check the age of the prosecutrix. The school's admission register regarding her date of birth was seized. Statements of witnesses were also recorded. According to the chemical FSL report (Exhibit P-33), human sperm was found in the slide prepared in the medical examination of the prosecutrix. The report of the appellants' underwear came negative. After investigation, a 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 33 documents. Statements of the

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appellants were recorded under Section 313 of Cr.P.C. in which they denied circumstances appearing against them in prosecution case, pleaded innocence and false implication.

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

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Learned counsels for the appellants submit that the prosecution has failed to prove that on the date of alleged incident i.e. 30/10/2015, the prosecutrix (PW-1) was a minor and was below 18 years of age. Learned counsels also submit that there is no statement of the prosecutrix (PW-1) being lured away by the appellants without the consent of her parents. The prosecutrix herself has said that she was going from Bhilai to Rajnandgaon. Thus, there is no case made out of kidnapping. The medical evidence of the prosecutrix also does not corroborate her statement. Appellant Ajay has not raped her forcefully. No crime has been made out against the appellants Kishan Sahu and Suraj Yadav. The names of appellants Kishan Sahu and Suraj Yadav have been unnecessarily added without any basis. The prosecutrix herself has not made any statement against them in her Court statement. After the completion of the cross-examination of the prosecutrix,

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on the application and request of the prosecution, she was examined again in respect of the appellants Kishan Sahu and Suraj Yadav, then she took their names and during the cross-examination in respect of them, the prosecutrix has not remained firm in her Court statement. The statement of the prosecutrix is contrary and contradictory to the statement given by her under Section-161 of the Code of Criminal Procedure. The statement of the prosecutrix shows her consent with the appellant Ajay. In this way, the prosecution has failed to prove any crime against the appellants. The conviction of the appellants is not based on clear, reliable and valid evidence. In such a situation, the “impugned judgment” is not worth sustaining. Therefore, the appellants may be acquitted of the charges leveled against them by setting aside the judgment of conviction and order of sentence.

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

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We have heard learned counsel appearing for the parties and perused the available record with utmost circumspection.

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As regards the age of prosecutrix (PW-1), she has not stated her date of birth in her Court statement. Her mother (PW-2) has estimated the prosecutrix's age to be 14-15 years. She admitted in her cross-examination that she had estimated the prosecutrix's age in school. Thus, neither the prosecutrix herself nor any of her close relatives have been able to tell her exact date of birth with certainty.

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As per the prosecution, an investigation has been conducted to ascertain the age of the prosecutrix. Dr. B.N. Devangan (PW-11) has stated that he has given X-ray report No. 12746 (Exhibit P-6) regarding the examination of the prosecutrix. According to the said report (Exhibit P-6), he has given his opinion that the prosecutrix's age could be between 15-16 years. What will be the evidentiary value of this opinion? If we think about this, then it is a wellestablished principle of law that the age may be 2 years less or 2 years more than the age stated in the ossification test and the ossification test report does not provide definite evidence of age. According to the medical opinion, the prosecutrix's age could have been 16 years, so if 2 more

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years are added to it, her age could be 18 years. Thus, on the basis of the ossification test report, it is not proved that the age of the prosecutrix was less than 18 years at the time of the incident.

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To prove the age of the prosecutrix, the police has seized and produced the Dakhil Kharij Panji (Exhibit P-30) of the Government Primary School, Kosanagar, Bhilai, District-Durg. The Principal of that school, Smt. Deepak Gawre (PW-10) has certified that according to the entry in the register (Exhibit P-30), the date of birth of the prosecutrix is recorded as 19/01/2000. She has stated in her cross-examination that the police had not seized any document other than the Dakhil Kharij Panji. What will be the evidentiary value of that Dakhil Kharij Panji? It becomes necessary to consider this aspect.

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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 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

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

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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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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 official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official 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

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evidence.

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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 (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

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would be quite unsafe to base conviction on an approximate date.

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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, it is clear that on what basis the entry of the date of birth of the prosecutrix was made in the Dakhil Kharij register (Exhibit P-30)? Principal Mrs. Deepak Gavare (PW10) has also failed to tell this. Mrs. Deepak Gavare has not stated that the said entry was made on the basis of any other birth certificate or Kotwari register. According to the said witness, the mother of the prosecutrix (PW-2) had come to get her daughter admitted in the school. The statement of the mother of the prosecutrix (PW-2) is that at the time of admission of the prosecutrix in the school, she had told her age on assumption. It is clear from this that the date of birth of the prosecutrix recorded in Exhibit P-30 is written on assumption and is not based on any Kotwari register or any other legal document related to the date of birth. In such a

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situation, the said Dakhil Kharij register loses its evidentiary value. On the basis of the above evidence discussion, it is concluded that the prosecution has failed to prove that on the date of the incident the age of the prosecutrix was less than 18 years and that she was a minor.

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As regards the conviction and sentence of Appellant Ajay Parihar @ Bunti @ Kaushlendra is concerned, first of all, considering the medical evidence of the prosecutrix, Dr. Babita Saxena (PW-4) has stated that on 03/11/2015, she had medically examined the prosecutrix and given report (Exhibit P-15) according to which no injury marks were found on her body, therefore, no definite opinion could be given regarding immediate sexual intercourse. In her crossexamination, she has stated that hymen ruptures even by riding a bicycle or playing and the prosecutrix's hymen was already ruptured. Thus, the prosecution case could not be supported by medical evidence.

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The prosecutrix (PW-1) in her Court Statement stated that she had contacted the appellant Ajay on phone and then on his call, she went to his house in Rajnandgaon from Bhilai where he lived alone on rent and stayed there with the appellant for 2-3 days where Ajay had physical

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relations with her. Later, when she protested and asked him to drop her to her house, the appellant Ajay started making excuses. In her cross-examination, this witness stated that when she had time, she used to talk sometimes even though it was a wrong number and whenever there was a missed call, she used to call back. She has admitted in her statement recorded under Section 161 of the Code of Criminal Procedure that on 30/10/2015, her mother scolded her for studying, so she left the house in anger with Rs. 100/- and came to Ajay's house in Rajnandgaon sitting with a stranger on a scooter. She has also accepted that she liked the appellant Ajay and hence went to meet him of her own will. She further stated that when she went to Rajnandgaon alone, Ajay took her to his house on foot from the bus stand.

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Thus, it is clear from the statement of the prosecutrix herself that no one took her to Rajnandgaon from Bhilai by luring her away from her parents, rather she herself took money from home and went to meet Ajay in Rajnandgaon alone after being scolded by her mother. She has not been found to be a minor and below the age of 18 years and it is reflected from her own statement that she was a consenting party with the appellant Ajay who stayed with him in his

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house for about 3 days. She never complained about anything to the neighbourhood or anywhere else.

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In this situation, if, in the FSL report, human sperms are found in the slide prepared by the doctor, then due to the consenting party and not being proved to be a minor, that FSL report has no evidentiary value against the appellant Ajay and the prosecution does not get its benefit. In view of above, when the prosecutrix is not proved to be a minor and she is found to be a consenting party, then the prosecution case against the appellant Ajay is not found to be proved and the conviction and sentence of the appellant is not upheld.

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As regards the conviction and sentence of Appellants Kishan Sahu and Suraj Yadav is concerned, it has not been proved that the prosecutrix was a minor. There is no evidence against the appellants Kishan Sahu and Suraj Yadav that whether they had lured the complainant away from her parents and taken her to Rajnandgaon or whether they had cooperated or instigated her with a common intention.

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The prosecutrix (PW-1) herself has not made any statement in her cross-examination that the appellants

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Kishan Sahu and Suraj Yadav had committed sexual intercourse with her. On 18/10/2016, when the crossexamination of the prosecutrix was completed, the prosecution filed a written application seeking permission to re-examine her, which was granted by the trial court. Thereafter, during the examination again, the prosecutrix stated that when she insisted on going to her home from the rented house of appellant Ajay, Ajay called his two friends and asked them to drop the prosecutrix at home. Then the appellants Kishan Sahu and Suraj Yadav made her sit with them in the bike and took her to a small hilly area and started roaming around and stopped the bike at one place and forcibly did wrong things with her. Thereafter, they made her sit in their bike and dropped her to her home in the morning. After the inclusion of the above Court statement against the appellants Kishan Sahu and Suraj Yadav, when the prosecutrix was crossexamined, she stated that she did not shout while coming on the motor cycle because she did not know the way. She further stated that the appellants Kishan Sahu and Suraj Yadav made her sit in the middle of the motor cycle. She further stated that she did not try to escape or create any kind of noise. Both the appellants had gone to drop her

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home and even then she was sitting between them in the motor cycle. She further stated that while returning home with both the appellants, they had stopped to withdraw money from the ATM and also stopped at the petrol pump to fill petrol in the vehicle, and at any point, she did not create any noise on the way nor did she tried to run away.

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In this situation, when no marks or injuries of coercion have been found in her medical report and this witness has not made any statement against both these appellants in her examination in chief, in the said situation, the statement of the prosecutrix that the appellants Kishan Sahu and Suraj Yadav had committed forcible sexual intercourse with her is not found to be credible. Thus, the prosecution case against the appellants Kishan Sahu and Suraj Yadav is also not found to be proved and their conviction and sentence are not upheld.

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In view of the aforesaid discussion and in light of the above referred judgments, the appeal is allowed and the impugned judgment dated 27/06/2018 passed by the trial Court convicting and sentencing the appellants for the offence as mentioned in paragraph 1 of this judgment, is hereby set aside. The appellants are acquitted of the charges leveled against them. The Appellants are in jail, they be released

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forthwith if not required to be detained in any other case/s.

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25. Let a certif i ed copy of this judgment along with the original record be transmitted to the trial Court concerned for

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information and necessary action, if any.

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Sd/-

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Sd/-

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