Vikas Sahu Vs State of Chhattisgarh

This criminal appeal filed by the appellant under Section 374 of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 27-01-2007, passed by learned 14^th Additional Sessions Judge (FTC), Raipur

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(C.G.), in Sessions Case No.431/2006, whereby the appellant has been convicted as under:-

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Conviction	Sentence & Fine
U/s 376 of the IPC	R.I. for 7 years and fine of Rs.500/-
	in default thereof, 3 months’
	additional RI

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As per prosecution story, on 09.09.2006, the family of the victim (PW-4), residing in village Pipri, police station Gobra Nawapara, had dinner and went to sleep. At around 11:30 PM, the victim's father (PW-6) woke up to use the washroom and noticed that his daughter/victim was not at home. She did not return by morning, so her father searched for her in the nearby villages and among relatives. During the search, he found out that a boy from the village, Vikas Sahu/appellant, was also missing from his house since that night. Victim’s father then lodged a missing person report at Gobra Nawapara police station, providing his daughter’s age and description. The report was registered on 15.09.2006, and a missing person case was registered. Similarly, Vikas Sahu’s father, Tiharu, also filed a missing person report when his son did not return home after leaving post-dinner on 09.09.2006. This report was also recorded on 15.09.2006, and a missing person case was registered. During the investigation, it was found that the appellant, Vikas Sahu, had eloped with the minor girl, by luring and coaxing her. As a result, a First Information Report (Exhibit P-22) was registered against the appellant, Vikas Sahu, under Sections 363 and 366 of the Indian Penal Code. On 23.09.2006, both the accused and the victim returned to the village and were taken to the police station. The investigating officer, continued the

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investigation and recorded the case diary statements of the victim, and arrested the Appellant. Thereafter, the medical examination of the victim was conducted. A site map of the incident location was prepared. The seizure of clothes of both the accused and the victim was made and sent for forensic examination. The Kotwari register of the village was seized to verify the age of the victim. Statements of all witnesses were recorded in the case diary. After completing the investigation, a charge sheet was filed against the appellant.

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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 16 witnesses, exhibited 24 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.

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After hearing the parties, vide impugned judgment dated 27.01.2007, the learned Trial Court has acquitted the Appellant for of f ence under Section 363 & 366 of IPC. However, convicted and sentenced him as mentioned in paragraph 1 of this judgment. Hence, this appeal.

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Learned counsels appearing for the appellant submits that the date of birth of victim (PW-4) is not proved. No conclusive evidence regarding her age has been produced by the prosecution. To verify her age, her ossification test was also not conducted. Thus, as date of birth of victim (PW-4) was not proved, the prosecution has failed to prove that the victim was minor at the time of the incident. They further submit that victim was a consenting party though prosecution has failed to prove its case, the appellant may be acquitted of the charge leveled against him by setting

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aside the impugned judgment of conviction and order of sentence. In support of their arguments, they relied upon a judgment passed by Hon’ble the Supreme Court in the matter of Nehnu Ram @ Narendra Vs. The State of Rajasthan passed on 20.02.2019 in CRA No.320/2019.

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On the other hand, the learned counsel for the State submitted 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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Consenting party

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The victim (PW-4) has stated in her Court statement that she know the Appellant Vikas Sahu. He is from her village. A week before the incident, she got into a relationship with him. The Appellant sent her a message through her friend Pinky, expressing his love for her and he wanted to meet her. Upon receiving her friend’s message, she went to meet the Appellant. She also had feelings for the Appellant. On September 9th of 2006, The Appellant sent her a letter through her friend Pinky, asking her to elope with him. Then she went to meet the Appellant, who was waiting nearby. After she left home, her family woke up and she got scared that she would be beaten if she returned home, so she left with the Appellant Vikas on foot and walked to the village Panduka at night and in Panduka, they stayed at her

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friend’s house. Thereafter they left village Panduka and performed marriage at Sirkati, thereafter they went to village Deori where they stayed at one Satanand’s house. They lived in a single room together and have had physical relationship with each other. The Appellant told her to go home back, thereafter, they returned to their village. She further stated that the Appellant had never made physical relation with her before their so called marriage.

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In her cross-examination, this witness stated that she and the Appellant were in love with each other. She herself went to the Appellant on her own will. They performed marriage with each other. She used to live as married woman. She told others that she was 18 years old. After their return, a village meeting was conducted in which her father refused to let her stay in his house because she had tarnished his reputation. She further stated that she wanted to live with the Appellant and she consider the Appellant as her husband.

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In view of above statement of the victim (PW-4), it is clear that she herself went with the Appellant on her own free will and she never opposed him, nor made any complaint before anyone. She was in love with the Appellant and she wanted to live with him. In such a situation, on the basis of statement of the victim, she appears to be a consenting party.

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11.Now the offence U/s 376 of IPC will be made out against the appellant only if the victim is found to be under 16 years of age at the time of the alleged incident i.e. 09.09.2006.

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Age

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12.As regards the age of the victim, the victim (PW-4), her mother (PW-5) and her father (PW-6) have been unable to tell the date of birth of the victim (PW-4). As regards her age, the prosecution has produced the Kotwari register (Exhibit P-19). The Kotwar Pandodas (PW-12), who made the entry, has stated that the date of birth of the victim is recorded as 05/02/1991 on page number-26 of that Kotwari register. According to which, on the alleged incident date i.e. 09/09/2006, the age of the victim (PW-4) was about 15 years 07 months and 04 days. The appellant party has challenged the said Kotwari register and the statement of Kotwar Pandodas (PW-12). The important fact to be noted is that it is not clear from the statement of the parents of the victim (PW-4) on whose information the date of birth was recorded in the Kotwari register. According to the entry made by Kotwar Pandodas (PW-12) in Exhibit P-19, the name was recorded on the information of Kotwar Pandodas (PW-12) himself, hence the evaluation of the evidence of Kotwari register (Exhibit P-19) remains important.

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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

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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 victim in the form of the school register was not sufÏcient to arrive at a finding that the victim was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the victim. It was neither safe nor fair to convict the accused, particularly when the age of the victim 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 victim 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 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 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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17. 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 victim has also not been able to give correct date of birth of the victim. 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

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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 light of the above judgments, if I consider the statement of Kotwar Pandodas (PW-12) and the document Kotwari register (Exhibit P-19), it is a notable fact that in that entry, the name of the girl's father is recorded as Nathuram Sahu. But the father himself (PW-6) and Kotwar Pandodas (PW-12) have admitted that there are two persons named "Nathuram" in that village and a noteworthy fact is that in the entry of Exhibit P-19, the name of the girl's mother is recorded as “जमुनबाई”, whereas according to the evidence presented in the Court statement, the victim's mother name is “जयमुनिन” (PW-5). Thus, there is a contradiction in the name of mother of the victim. There are two persons with the same name as the father and along with this it has also come to light that the date of birth of the victim (PW-4) is said to be recorded on the information dated 06/02/1991 in page number-26, just before that in the entry on page number-25 the date of giving information and birth of another child is shown as 07/02/1991 i.e. the name of the person whose birth and information was given later is recorded on page number-25 whereas the name of the person whose birth and information was given earlier is entered on page number-26 which makes the entry and maintenance of this Kotwari register completely doubtful. Since, along with the victim,

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her parents have also failed to tell the date of birth of the victim (PW-4). They have not stated that they have given the information of the birth of the victim (PW-4) to registered in the Kotwari register and it is also not clear from the statement of Kotwar Pandodas (PW-12) that any of the parents had registered the date of birth of the victim by giving information about her birth. In such a situation, the statement of Kotwar Pandodas (PW-12) is not reliable beyond doubt and the entry in the Kotwari register (Exhibit P-19) is also not proved beyond doubt.

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On the basis of the above evidence discussion, it is not proved beyond doubt that the date of birth of the victim (PW-4) is 05/02/1991 and it is also not proved that on the date of incident i.e. 09/09/2006, her age was less than 16 years. Since, the victim (PW-4) was consenting party. In such a situation, the impugned judgment is not found to be sustainable.

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Therefore the appeal is allowed. The impugned judgment is set aside and the appellant is acquitted.

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It is reported that the Appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C.

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

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Sd/-

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(Sanjay Kumar Jaiswal)

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Judge

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Shubham

Vikas Sahu v. State of Chhattisgarh

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Vikas Sahu v. State of Chhattisgarh

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