Rohit Kumar Vs State of Chhattisgarh

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2025:CGHC:58906

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Digitally signed by RAVVA UTTEJ KUMAR RAJU

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1070 of 2007

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The date when	The date when	The date	when the
the judgment is	the judgment is	judgment is u	ploaded on
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		Operative	Full
…..	….	04.12.2025	05.12.2025

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Rohit Kumar, aged about 25 years, S/o Jaiprakash Paraste, R/o, Village Lohari, P.S. Marwahi, District Bilaspur (C.G.)

... Appellant

(In Jail)

Versus

State of Chhattisgarh, through P.S. Marwahi District Bilaspur (C.G.)

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... Respondent

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For Appellant : Ms. Neeta Tulsani Thawani, Advocate. For State : Ms. Nandkumari Kashyap, P.L. Hon'ble Smt. Justice Rajani Dubey

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Judgment on Board

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04.12.2025

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This appeal is preferred under Section 374 of the Code of Criminal Procedure, 1973 against the judgment dated 21.11.2007 passed by learned Additional Sessions Judge, (F.T.C.), Pendra Road, Bilaspur District Bilaspur (C.G.) in Sessions Trial No. 371/2004, wherein the said Court convicted the appellant and sentenced him as under :-

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Conviction	Sentence
Under Section 363 of IPC	R.I. for 06 months and fine of Rs. 500/-, in default of payment of fine, to undergo additional R.I. for one month.
Under Section 366 of IPC	R.I. for 01 year and fine of Rs. 500/-, in default of payment of fine, to undergo additional R.I. for one month.
Under Section 376 (1) of	R.I. for 07 years and fine of Rs. 500/-,
IPC	in default of payment of fine, to
	undergo additional R.I. for one month.

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(All the sentences are directed to run concurrently)

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The case of the prosecution, as unfolded from the impugned judgment and the records of the case are that the grandfather of the prosecutrix was working as Forest Guard and he is permanent resident of VillageMarwahi. The prosecutrix is residing with her grandfather and is studying in Class X th at Saraswati Shishu Mandir. On 11.04.2004, the prosecutrix’s grandfather came to Bilaspur and Korba for some personal work, and on 12.04.2004 at about 3 am, the prosecutrix went outside her house and ran away with the appellant without even intimating to anyone. The appellant and the prosecutrix came to villageLohari and thereafter went to village-Bijuri and then to Baigatola and then to Bilaspur and subsequently from Bilaspur to Raigarh and in Raigarh, they took room on rent, and thereafter both of them went to Rourkela, wherein their marriage was solemnized at Vaishano Devi Temple. After passage of 15-20 days, they came back to Naila, and thereafter they came back to Ratanpur, Bilaspur (C.G.) where one Vinod has identified them and informed to prosecutrix’s grandfather.

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Thereafter, the matter was reported at Marwahi Police Station by her grandfather (PW-01).

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During the investigation, the police station Marwahi registered the criminal case against the appellant and registered it under Crime No. 45/2004 for the offence punishable under Sections 363, 366 and 376 (1) of IPC.

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After completion of due and necessary investigation, charge-sheet was led before the Judicial Magistrate First Class, Pendra Road, District Bilaspur (C.G.) 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 person having abjured guilt was subjected to trial.

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In order to establish the charges against the accused person, the prosecution has examined as many as 20 witnesses and also produced the transfer certificate of the prosecutrix. The statement under Section 313 of Cr.P.C. of the appellant was recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence and false implication in this case. However, one witness has been examined by him in his defence and also filed Ex. D/04, school certificate according to which the date of birth of the prosecutrix is 01.08.1987.

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The learned trial Court after hearing the counsel for the respective parties and considered the material available on record has convicted and sentenced the present accused/appellant as mentioned in opening para of this judgment. Hence, this present appeal.

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Assailing correctness and validity of the impugned judgment of conviction and order of sentence, l earned counsel for the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case, the learned trial Court has not properly appreciated the evidence available on record. The learned trial Court ought to have acquitted the appellant of the charges under Section 376 of IPC, specifically in view of the fact that the mother and father of the prosecutrix have not been examined. The learned trial Court should have seen the statement of grandfather (PW-01), who has categorically stated that the prosecutrix was admitted in Class I, whereas Mrs. Chameli Pathak (PW-15) has stated that the prosecutrix was admitted in Class IV^t^h . The learned trial Court disbelieved the defence witnesses and the certificate issued by the Principal, in which the date of birth of the prosecutrix was mentioned as 01.08.1987. He further submits that the prosecution has not properly submitted the evidence for determining the age of the prosecutrix. However, as per the fact of the present case itself, the prosecutrix is consenting party and according to the report of Dr. Smt. Shila Saha (PW-04), the prosecutrix is aged more than 16 years. Learned trial Court ought to have seen the evidence of the prosecutrix and the evidence of other star witnesses have not been duly corroborated by the medical evidence, therefore, the conviction of the accused is not just and proper. It is further submitted that in the present case, the prosecutrix is not disclosing anything about allegation of rape on her by the appellant, statement given by the prosecutrix in the police station is not of evidential importance, therefore, it shows that there is total absence of evidence proving offence of rape on prosecutrix. So. the prosecution has utterly failed to prove its case

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beyond reasonable doubt and findings recorded by learned trial court are highly perverse. As such, the impugned judgment is liable to be set aside.

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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.

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I have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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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 present appellant for offence under Sections 363, 366 and 376 of IPC.

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As per the prosecution, on the date of incident victim/prosecutrix was below 16 years of age.

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Prosecutrix/victim (PW-5) has stated that on 4:00 am of April, 2004, the accused wrote a letter asking her to come out from her house, then the prosecutrix by collecting her luggage came out of the house and met the accused who was waiting outside the gate and after that he took her to his house in village Lohari where his aunt was there and the prosecutrix stayed there for the night with the appellant. Thereafter, the grandfather of the prosecutrix went out to look for her and the appellant’s aunt made both of them leave the place and then, the appellant took her by walk to somewhere else and she has no clue as

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to where she went with the appellant and after some time they went further on foot to some village. Thereafter, the appellant took her to his parents’ house at Janjgir and after staying there whole night, they both went to Rourkela and there they stayed in a lodge for about 2 days and then the appellant took her back to his parents’ house at Janjgir and there they both stayed for a week and subsequently the appellant took her to a rented house in Janjgir and there she stayed with the appellant for 15-20 days. She admitted in her cross-examination that she neither complained to anyone about the appellant while traveling with him, nor she complained about him to anyone though being residing with him for more than 1^½ months.

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Thus, from the aforesaid discussion of evidence of victim/prosecutrix (PW-05) and looking to her conduct, it is evident that the only inference that can be drawn is that the victim/prosecutrix was a consenting party to the act of the appellant.

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Deepakchand Sharma (PW-16), Principal of Saraswati Shishu Mandir filed the admission register (Ex. P/12) of school in which the prosecutrix studied and further stated that as per this register the name of the prosecutrix is at serial No. 205 and her date of birth is 01.08.1988 and he gave his report vide Ex. P/13. In his cross-examination he has stated that at the time of entry in Ex. P/12, he was posted as Clerk and he entered the name of the prosecutrix on the instructions of Principalin-Charge and the prosecutrix was admitted in Class IV^th of his school and as per her transfer certificate of the previous school, her date of birth was entered in the register and he further stated that he is unaware of the date of birth of the prosecutrix which is mentioned in the

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transfer certificate.

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Mrs. Chameli Pathak (PW-15) Principal of Higher Secondary School Marwahi has stated that the prosecutrix was studying in Class VIII^th of her school and her mark-sheet of Class VIII^th is Article-A and as per transfer certificate, the name of the prosecutrix was entered in the school. However, no birth certificate or school register of Class I was filed by the prosecution.

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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:

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"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.

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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:-

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"The date of birth mentioned in the scholars' register has

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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."

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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:-

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"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

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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"."

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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.

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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:-

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“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

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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.”

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In the light of above cited judgment, it is clear that the prosecutrix was admitted in Class IV^th in the school and Deepakchand Sharma (PW-16), Principal of Saraswati Shishu Mandir School has admitted that he has entered the date of birth of the prosecutrix on the basis of transfer certificate of previous school. Therefore, there is lack of clinching and legally admissible evidence regarding date of birth of the prosecutrix as filed by the prosecution, but the learned trial Court did not appreciate all these facts and finds that the prosecutrix was below 16 years of age. Learned trial Court finds that the prosecutrix is a consenting party to the act of the appellant and she married to the accused/appellant, but on this ground that she is below 16 years of age, the appellant was convicted. It is further clear that the prosecution has failed to prove that the prosecutrix was below 16 years of age on the date of incident. So, the findings recorded by the learned trial Court are not sustainable in the eyes of law.

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For the foregoing discussions, this Court is of the opinion that the

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prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt.

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In the result, the appeal is allowed. The impugned judgment of conviction and sentence dated 21.11.2007 is set aside. The appellant is acquitted of all the charges leveled against him. The appellant is in jail and he be released forthwith if not required in any other case.

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Keeping in view the provisions of Section 437-A Cr.P.C.(481 of the B.N.S.S), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of 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 thereof shall appear before the Hon’ble Supreme Court.

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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

U.K. Raju

Rohit Kumar v. State of Chhattisgarh

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Rohit Kumar v. State of Chhattisgarh

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