Chandan and 2 Ors. Vs State of Chhattisgarh

1

2025:CGHC:57219

The date when	The date when	The date	when the
the judgment is reserved	the judgment ispronounced	judgment is u the we	ploaded on bsite
		Operative	Full
…...	….	--	26.11.2025

¶4

NAFR

¶5

HIGH COURT OF CHHATTISGARH, BILASPUR

¶6

CRA No. 150 of 2008

¶7

Chandan, S/o Siyamber alias Pitamber, aged 24 years,

¶8

Siyamber alias Pitamber, S/o Amarsai Panika, aged 48 years,

¶9

Asha Devi, W/o Siyamber alias Pitamber Panika, aged 45 years,

¶10

All the above appellants are resident of Azad Nagar, Godaripara, P.S. Chirimiri, District Korea (C.G.)

¶11

---- Appellants

¶12

Versus

¶13

State of Chhattisgarh Through : Incharge Office, Police Station – Chirimiri, District Korea (C.G.)

¶14

---- Respondent

¶15

For Appellant. Mrs. Usha Chandrakar, Advocate. For Respondent - Ms. Nandkumari Kashyap, P.L.

¶16

Hon'ble Smt. Justice Rajani Dubey

¶17

(Judgment on Board)

¶18

2

¶19

25.11.2025

¶20

By the PUD under consideration, it has been apprised to this Court by the Principal District & Sessions Judge, Korea at Baikunthpur that appellant No.3 - Asha Devi left for heavenly abode on 10.04.2024, and the death certificate issued by the Municipal Corporation, Bilaspur, has also been annexed with the report.

¶21

Learned counsel appearing for the appellants and learned State counsel have also confirmed the death of Appellant No.3-Asha Devi.

¶22

In view of death of Appellant No.3-Asha Devi and in absence of any application for bringing legal heirs to represent the appellant No.3, the appeal in respect of appellant No.3 abates and the same is dismissed as abated.

¶23

Now this appeal only confines in respect of appellant Nos. 1 and 2 (hereinafter referred to as ‘accused/appellants’).

¶24

5. This appeal arises out of the judgment of conviction and order of sentence dated 30.01.2008 passed by the learned 2^nd Additional Sessions Judge (F.T.C.), Manendragarh, District Korea (C.G.) in Sessions Trial No.02/2007 convicting and sentencing the accused/appellants as under :-

¶25

Conviction	Sentence
Appellant No.1	R.I. for 3 years with fine of
Under Section 363 of IPC	Rs.500/-, in default of payment of fine amount to undergo additional R.I. for 06 months.
Appellant No.1	R.I. for 3years with fine of

¶26

3

¶27

Under Section 366 of IPC	Rs.500/-, of fine additiona (Both t directed t	in default of payment amount to undergo l R.I. for 06 months. he sentences were o run concurrently.)
Appellant Nos. 2 & 3 Under Section 363/34 of IPC.	R.I. for Rs.500/- payment undergo months.	3 years with fine of each, in default of of fine amount to additional R.I. for 06
Under Section 366/34 of IPC.	R.I. for Rs.500/- payment undergo months. (Both t directed t	3 years with fine of each, in default of of fine amount to additional R.I. for 06 he sentences were o run concurrently).

¶28

The prosecution story, in brief, is that on 19.06.2006, a report was lodged by complainant (PW-5), father of prosecutrix (PW-4), in police station Chirmiri to the effect that his daughter (PW-4) left the house on 16.06.2006 at 10.00 PM without informing anyone. She was extensively searched all around whole night but she could not be traced out. On 17.06.2006, his neighbour Om Prakash Gupta (PW7) told the complainant (PW-5) that his daughter (PW-4) was going with accused/appellants towards Godripara on foot, whereupon complainant asked appellant Siyamber (A2) as to where had he taken his daughter (PW-4) then he told that his son Chandan (A-1) would marry his daughter. On the basis of this report, an FIR (Ex.P-1) was registered against the accused/appellants for the offence punishable

¶29

4

¶30

under Sections 363, 366 read with section 34 of IPC and started investigation in the matter. With regard to the age of the prosecutrix (PW-4), the police seized documents as mentioned in Ex.P-2 to P-4. Certificate of Pre-Secondary Examination, 2004 of the prosecutrix was seized vide Ex.P4. The statements of witnesses were recorded under Section 164 of Cr.P.C. and after completing due investigation, charge sheet was filed against the accused/appellants under Sections 363 and 366 read with section 34 of IPC, and the learned trial Court framed charges against the accused/appellant Chandan (A-1) under Sections 363, 366 of IPC and against accused/appellant Siyamber (A-2) under Sections 363 and 364 read with section 34 of IPC.

¶31

So as to hold the accused/appellants guilty, the prosecution examined as many as 10 witnesses. Statements of the accused/appellants were also recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication.

¶32

The trial Court after hearing counsel for the respective parties and considering the material available on record, while acquitting co-accused Pannalal from the offence under Sections 363, 366 read with section 34 of IPC, convicted the accused/appellant No.1 under Section 363, 366 of IPC and

¶33

5

¶34

accused/appellant No.2 under Section 363 and 366 read with section 34 of IPC and sentenced them as mentioned in para-1 of this judgment. Hence, this appeal.

¶35

Learned counsel for the appellants submits that the impugned judgment of conviction and order of sentence is illegal, perverse and erroneous. The prosecution has filed a certificate (Ex.P-3) showing the date of birth of the prosecutrix to be 23.03.1990 issued by Subhash Singh, Principal of the School, and a mark sheet of Middle School (Ex.P-4/A) but said Subhash Sing was not examined before the learned Trial Court and the Brijmohan Sharma (PW-10), Principal, proved the signature of Subhash Singh and he only identified the signature of Subhash Singh stating that the date of birth of the prosecutrix was 23.03.1990 as per the school admission register, as such, the prosecution has failed to prove the date of birth of the prosecutrix. Learned counsel also submits that the prosecution did not seize school admission register of Primary School but the learned Trial Court did not appreciate all these fact and gave erroneous finding that the prosecutrix was below 18 years of age. The finding of learned Trial Court is not sustainable and therefore, the impugned judgment of conviction and order of sentence are liable to be set aside.

¶36

On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the

¶37

6

¶38

accused/appellants is strictly in accordance law and there is no infirmity in the same.

¶39

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

¶40

It is clear from the record of the learned trial Court that the learned trial Court framed charges against the accused/appellant No.1 under Sections 363, 366 of IPC and against accused/appellant No.2 under Sections 363 and 366 read with section 34 of IPC & after appreciating oral and documentary evidence, the learned trial Court while acquitting co-accused Pannalal from the offence under Sections 363, 366 read with section 34 of IPC, convicted the accused/appellant No.1 under Section 363, 366 of IPC and accused/appellant No.2 under Section 363 and 366 read with section 34 of IPC and sentenced them as mentioned in para 5 of this judgment.

¶41

The prosecution has filed certificate (Ex.P-3) issued by the Principal of Saraswati Shishu Mandir, Godripara, District Korea (C.G.) and prosecutrix’s mark sheet (Ex.P-4/A) of Pre Secondary School Examination, 2004, and in order to arrive at finding with regard to age of the Prosecutrix, the learned Trial Court relying upon the aforesaid documents recorded its finding that the date of birth of the prosecutrix was 23.03.1990 and on the date of incident i.e. on 16.06.2006, she was below 18 years of age.

¶42

7

¶43

Now, this Court has to consider whether the learned Trial Court was fully justified in arriving at such finding relating to the date of birth and age of the prosecutrix.

¶44

S.L. Sharma (PW-3), Assistant Sub Inspector, has stated that he had obtained certificate of Principal regarding the date of birth of the prosecutrix vide Ex.P-3 and mark sheet of prosecutrix vide Ex.P-4/A.

¶45

Brijmohan Sharma (PW10) is the Principal of Saraswati Shishu Mandir, Godripara. He has stated that certificate (Ex.P-3) regarding the date of birth of the prosecutrix, was issued by Principal Subhash Singh Acharya and he (this witness) identified his signature on ‘B to B’ part on Ex.P-3. In cross-examination, this witness has admitted that he did not recognize the prosecutrix personally but he recognize the signature of Subhash Singh Acharya.

¶46

Bare perusal of the testimony of Brijmohan Sharma (PW-10) goes to show that he is not the author of documents (Ex.P-3 and P-4) wherein the date of the prosecutrix is mentioned as 23.03.1990.

¶47

Further, when this Court delve into the evidence of Prosecutrix (PW-4), she admitted in her cross-examination, that she accompanied the accused/appellants because her father (PW-5) was scolding her after getting failure in class 10. The prosecutrix has also admitted that she stayed with the accused/appellants in Bilaspur for 03 days. She denied

¶48

8

¶49

her photograph (Ex.D-1) with the accused/appellant No.1 but has admitted the letter (Ex.D-2), contents of which shows that it was the reply to the letter of the accused/appellant No.1, and she herself stated that she was forced to write a letter (Ex.D-2) by the accused/appellants. The foresaid testimony of the prosecutrix shows her conduct that that she was a consenting party to the act of the accused/appellants and she accompanied the accused/appellants of her own without any protest thereagainst and she was in love with accused/appellant No.1.

¶50

Geeta Devi (PW-6) is the mother of Prosecutrix. She has stated that she did not remember the exact date of birth of her daughter and what she stated that her daughter born in the year 1990.

¶51

From the aforesaid testimonies of the prosecution witnesses, it is apparent that no clinching and admissible evidence has been produced by the prosecution regarding the date of birth of the prosecutrix. The prosecution has filed certificate (Ex.P-3) regarding the date of birth of the prosecutrix which has been signed by Principal Subhash Singh Acharya but said Subhash Singh Acharya, who happens to be the author of document, was not examined by the prosecution to prove the said documents. Further, the prosecution has filed mark sheet of District Pre-Secondary Examination, 2004 of the prosecutrix which shows the date

¶52

9

¶53

of birth of the prosecutrix as 23.03.1990 but in absence of examination of the author of the said document and in absence of the fact that on what basis the said date of birth was recorded therein, the same cannot be relied upon for arriving at finding that the prosecutrix on the date of incident was minor/below 18 years of age.

¶54

21. While dealing with the evidentary value of documents like Dakhil Kharij register, transfer certificate which contains the date of birth of a person, 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

¶55

40 & 48 of its judgment as under :-

¶56

“40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl’s date of birth was 15^th 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., 31^st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. 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.

¶57

48. We may further notice that even with reference to Section 35 of the Indian Evidence

¶58

10

¶59

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 :-

¶60

“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 the lis, having 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

¶61

although might have consented with the accused, if on the basis of the entries

¶62

11

¶63

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.”

¶64

In the light of aforesaid judicial pronouncement, it is apparent that Brijmohan Sharma (PW-10) is not an author of entry of date of birth of the prosecutrix made in Ex.P-3 and P-4 & the school admission register was also not produced by the prosecution and only on the basis of certificate (Ex.P3) and mark sheet of Pre-secondary Examination, 2024 (Ex.P-4), the learned Trial Court recorded finding with regard to age of the prosecutrix to be below 18 years. That apart, father (PW-5) and mother (PW-6) of prosecutrix did not spell anything specific about the date of birth of their daughter but the learned Trial Court did not appreciate all these facts in its true perspective and recorded perverse finding. Thus, in absence of examination of author of documents (Ex.P-3 and P-4) and in absence of any corroborative and substantive piece of evidence with regard to the date of birth of the prosecutrix and in view of judgment of Hon’ble Apex Court in Alamelu (supra) , it would be very difficult for this Court to arrive at finding that the Prosecutrix was minor at the time of incident. Thus, this Court set aside the finding of the learned trial Court holding

¶65

12

¶66

the Prosecutrix to be minor.

¶67

In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 30.01.2008 passed in Sessions Trial No.2/2007 are hereby set aside. The accused/appellants are acquitted of the charges levelled against them by extending benefit of doubt.

¶68

The appellants are reported to be on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellants are 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/- each 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 appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

¶69

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.

¶70

Sd/-

¶71

(Rajani Dubey) JUDGE

¶72

pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.11.26 15:52:00 +0530

Chandan and 2 Ors. v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Chandan and 2 Ors. 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

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sukhdev and Another Vs State of Chhattisgarh

Mujahid Raza Vs State of Chhattisgarh

Chhote lal Vs State of Chhattisgarh

Sumer Singh Rathore Vs State Of Chhattisgarh

Bhurulal Vs State Of Chhattisgarh

Premsay And Ors. Vs State Of Chhattisgarh