Rohit Kumar Vs State of Chhattisgarh

This appeal arises out of the judgment of conviction and order of sentence dated 13.07.2005 passed by the 2^nd Additional Sessions Judge (F.T.C.), Mungeli (C.G.) in S.T. No.107/2005 convicting and sentencing the accused/appellant as under :-

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CONVICTION	SENTENCE
Under Section 363 of IPC	R.I. for 03 years and 06 months with fine of Rs.500/-, in default of fine amount to further undergo additional R.I. for 02 months.

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According to the prosecution, on 16.01.2003, prosecutrix (PW/6), who is minor, after returning from school, went to answer the call of nature at around 5.30 PM but did not return from there. Thereafter, the prosecutrix (PW/6) was extensively searched by her mother Sumitra Bai (PW/4) but all her efforts went in vain. Thereafter, on 17.01.2003, complainant Gofelal (PW/3), father of prosecutrix, was informed by Dhaniram and Bhakadali of village Bareth that his daughter Prosecutrix was abducted by accused/appellant and on the same day at evening, he was also informed by Punnu that he had seen his daughter (PW/6) near Khamhi Bus Stand. He has also informed that his daughter was taking ticket to go from Khamhi to Korba and the accused/appellant was also with her. Thereafter, complainant Gofelal (PW/3) went to Dipika-Korba where Gopal, uncle of accused/appellant, who was driver by profession, but she could not be found. Thereafter, after 4-5 days of the incident, he filed a written complaint against the accused/appellant in Police Station Mungeli for abducting his daughter by luring her on the pretext of marriage. On the

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basis of his written complaint, the police of Police Station Mungeli registered an F.I.R. for the offence under Sections 363 and 366 of IPC and the matter was investigated.

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After investigation, on finding the charge proved against the accused/appellant, charge sheet was filed against the accused/appellant under Sections 363 and 366 IPC before the jurisdictional Court and the charges were framed against him accordingly, from where the case was committed to the Court of Sessions for trial.

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In order to prove the guilt of the accused/appellant, the prosecution examined as many as 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

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The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence is bad, illegal, perverse and contrary to the law applicable to the facts and circumstances of the case. The learned trial Court has failed to see that to convict the appellant, the prosecution has to prove its case beyond reasonable doubt.

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The prosecution has not produced/exhibited the mark sheet of the prosecutrix (PW/6), which could show her exact date of birth. Learned counsel further submits that the learned trial Court ought to have seen that prosecutrix (PW/6) was on the verge of majority at the time of incident. She had the complete knowledge of her alleged act. The prosecutrix (PW/6) accompanied the accused/appellant on her free will, which shows that she was the consenting party to the act of the accused/appellant, for which he cannot be held guilty. Thus, the impugned judgment of conviction and order of sentence is liable to be set aside by allowing the instant appeal.

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On the other hand, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellant. Thus, the appeal being without any substance is liable to be dismissed.

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

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It is apparent from the record of the trial Court that charges under Sections 363 and 366 IPC were framed against the accused/appellant and after appreciation of oral and documentary evidence, the learned trial Court finds that the accused/appellants after luring the prosecutrix (PW/6),

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abducted her from the lawful guardianship on the pretext of marriage and convicted him under Section 363 of IPC.

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Shamji (PW/1) and Koushal Prasad (PW/2) have stated that on the date of incident, there was hue and cry that prosecutrix (PW/6), daughter of Gofelal (PW/3) had eloped but they did not know with whom she had eloped. These witnesses showed their ignorance to the rest of the prosecution story.

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Gofelal (PW/3) is the father of Prosecutrix (PW/6). He has stated that on the date of incident at around 5.00 PM, his daughter had gone to answer the call of nature from where the accused/appellant and another person whose name he does not know, took his daughter on motorcycle. He has also stated that on the night of incident itself, he sent Koushal and Taran to village Chakla where they came to know that the accused/appellant was from there. Thereafter, Taran and Koushal informed this witness that the accused/appellant and his daughter were not there. This witness has also stated that upon inquiry and on some tipoff, he along with Faguwa, Panchram and Geeta Prasad went to Korba but they did not receive any information about his daughter. He has also stated that in Korba, Geeta Prasad saw a girl crying who looked similar to the prosecutrix and when they reached there, the door had closed by the time and from another door one woman came

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and inquired from us that from where had they come and on 4^th day they returned from Korba. This witness has also stated that after 4-5 days of incident when his daughter was not found, he reported the matter in police station Mungeli under Ex.P/2. He has also stated that his daughter (PW/6) was minor at the time of incident and had filed admit card (Ex.P/6) of the prosecutrix (PW/6).

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Prosecutrix (PW/6) has stated that on 16.01.2003, she had accompanied the accused/appellant to Bilaspur and after reaching there she performed marriage with him. She has also stated that at that time she was 18 years. The prosecution declared this witness hostile and crossexamined her but she denied all suggestions of the prosecution.

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K.K. Navrang (PW/5) is Teacher of Govt. High School, Fasterpur. He has stated that admit card of examination of C.G. Higher Secondary School Certificate, 2002 is Ex.P/6, which was given by their school on which signature of Principal Shri R.S. Pandey is on ‘A to A’ part.

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The learned trial Court while arriving at the finding regarding majority of the prosecutrix (PW/6) relied upon the testimony of the K.K. Navrang (PW/5) and prosecutrix (PW/6) & recorded its finding that the prosecutrix (PW/6) on the date of incident was below 18 years of age.

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Perusal of Ex.P/6 goes to show that it is only an admit card

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of examination which does not contain any date of birth of the prosecutrix (PW/6). The admit card of examination is not an age certificate and the prosecution did not examine Principal of the school or any other competent officer to prove this fact that the prosecutrix at the time of incident was below 18 years of age. The learned trial Court relying on the testimony of prosecutrix (PW/6) where in para 8 of her cross-examination, she stated that her date of birth is 30.09.1985, and thus held her to be below 18 years of age on the date of incident i.e. 16.01.2003. Apart from this, there is not clinching and credible evidence on record to prove the age of the prosecutrix. The learned trial Court only on this ground that defence did not cross-examine K.K. Navrang (PW/5), finds that the prosecutrix (PW/6) was below 18 years of age but it is clear from the testimony of K.K. Navrang (PW/5) that he only exhibited admit card (Ex.P/6), wherein there is no mention of date of birth. Further, no school admission register was produced by the prosecution and birth certificate was filed by the prosecution before the learned trial Court but the learned trial Court did not appreciate this fact and recorded its finding that the prosecutrix (PW/6) was below 18 years of age, which is not sustainable in the eye of law. It is settled in law that only on the basis of admission of prosecutrixf, no inference can be drawn regarding age of the prosecutrix unless the same is

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corroborated by the substantive piece of evidence.

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16. 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 & 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 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.

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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

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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 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 aforesaid judgment of Hon’ble Apex Court in Alamelu (supra), this Court finds that apart from statement of prosecutrix (PW/6) in para 8 of her cross-examination, admit card of examination, which does not contain date of

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birth of the prosecutrix, there is no clinching and legally admissible evidence on record to prove that the prosecutrix, on the date of incident, was below 18 years of age. In absence of any incriminating evidence regarding date of birth of the Prosecutrix (PW/6), it would be very difficult for this Court to arrive at finding that the Prosecutrix was minor at the time of incident. Considering all the aspects of the case, it can be said that there is no clinching, credible and reliable evidence in respect of age of the prosecutrix, and infact, she appears to be a consenting party to the act of the accused/appellant and she accompanied the accused/appellant of her own but the learned trial Court did not appreciate this fact and recorded perverse finding. In these circumstances, the appellant is definitely entitled to be acquitted of the charges leveled against him by extending him benefit of doubt.

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In the result, the appeal is allowed. Conviction of the accused/appellant under Section 363 and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charge by extending him benefit of doubt.

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The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 437-A of Cr.P.C.

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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

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compliance and necessary action.

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Sd/-

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(Rajani Dubey) JUDGE

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Digitally signed bypekde VIJAY BHARATRAO PEKDE Date: 2025.01.24 10:57:36 +0530

Rohit Kumar v. State of Chhattisgarh

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Rohit Kumar v. State of Chhattisgarh

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