Lokesh Kumar Vs State of Chhattisgarh

This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 07-08-

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2006, passed by learned 10^th Additional Sessions Judge (FTC), Durg (C.G.), in Sessions Trial No.222/2004, whereby the appellant-accused has been convicted as under:-

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Conviction	Sentence & Fine
U/s 363 of the IPC	R.I. for 1 year and fine of Rs.500/-
	in default thereof, 3 months’ additional RI
U/s 366 of the IPC	R.I. for 3 years and fine of Rs.500/- in default thereof, 3 months’ additional RI
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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The sentences are directed to run concurrently.

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As per prosecution story, the prosecutrix who was aged about 14 years was residing with her father at village Bhothli. On 19th July 2004, at around 7 PM, the prosecutrix went out for defecation, at that time, the accused, Lokesh Kumar Sahu, also a resident of the same village, came on a bicycle and he lured the prosecutrix by promising to marry her and forcibly took her with him. He roamed around with her and eventually took her to his maternal uncle’s house in Nagpur. There, he coaxed her with the promise of marriage and sexually assaulted her against her will. While staying at his uncle’s house, the accused continued to have sexual intercourse with her daily. When the prosecutrix did not return home for a long time, her father lodged a missing report. During their search, the prosecutrix’s father and uncle reached Nagpur and found her, after which they brought her back to the

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village. Based on the prosecutrix’s written report (Exhibit P-1), an FIR (Ex.P-2) was registered against the accused. Thereafter, the prosecutrix was medically examined. Her medical examination report is Ex.P-9. A spot map (Ex.P-5) was prepared. The prosecutrix birth-related documents, including her primary school mark-sheet of the year 2002 (Article “A”), was seized vide Exhibit P-4 and also Dakhil Kharij Register was seized vide Exhibit P-10-C. During the investigation, the clothes of the prosecutrix and the accused were sent for forensic examination. Thereafter, the accused, Lokesh Kumar, was arrested and underwent a medical examination and a report (Exhibit P-12) was obtained. The vaginal slide and pubic hair samples of the prosecutrix were sent for chemical analysis. After completing the investigation, a charge sheet was filed against the accused.

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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, exhibited 18 documents and one article. 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, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal.

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Learned counsel for the appellant submitted that the date of birth of prosecutrix (PW-1) 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 prosecutrix (PW-1)

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was not proved, the prosecution has failed to prove that the prosecutrix was minor at the time of the incident. He further submitted that prosecutrix was consenting party though prosecution has failed to prove its case, the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence.

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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 prosecutrix (PW-1) has stated in her Court statement that when she went out for defecation at that time, the accused, Lokesh Kumar Sahu, came on a bicycle forcefully make her sit and took her to his uncle’s home at village Nikum, from where he took her in bicycle to nearby railway station at Durg from where he took her to his maternal uncle’s home at Nagpur and they stayed there for 4-5 days. She further stated that, on the night when they reached to Appellant’s uncle home at Nagpur, the Appellant forcibly committed sexual intercourse with her. She further stated that the Appellant not allowed her to go out from his uncle’s home. After staying for about 4-5 days in Nagpur, her father,

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her maternal uncle and one person reached Nagpur in search for her and found her in Appellant’s uncle house from where they took her to their village Bhothli.

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In her cross-examination, this witness stated that she and the Appellant belongs to same caste. The house of the appellant and her house are situated at a distance of 400500 metres and no other house is situated within this distance. In paragraph 13 of her cross-examination, this witness stated that she sat in front of bicycle with the Appellant and many people saw her going with the Appellant on bicycle and she has not made any noise/complaint before anyone that she was being forcefully taken by the Appellant. She further stated that the Appellant took her to one village where they stayed for about 2-3 days from where they went to bus stand and traveled in a bus and thereafter went to railway station and traveled in a train as well. She further stated that in Nagpur, she stayed with the appellant in a rented house for a day. She further stated that in Nagpur, uncle of her father conducted a social meeting wherein she was asked whether she wants to live with the Appellant or with her father.

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In view of above, it is clear from the statement of the prosecutrix that she herself went with the Appellant and she never opposed him, nor made any complaint before anyone. She traveled with the Appellant in various public places like bus stand, railway station and also traveled in the bus and train, also stayed in various places but, she never opposed or complained against the appellant anywhere. Thus, it is clear from the statement of prosecutrix that she herself went to the appellant on her own will. She stayed with the Appellant Nikum, Durg and

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Nagpur where she never complained to anyone.

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11.In such a situation, on the basis of statement of the prosecutrix, the prosecutrix appears to be a consenting party.

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12.Now the offence will be made out against the appellant only if the prosecutrix is found to be a minor at the time of the alleged incident.

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Age

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13.As regards the age of the prosecutrix, the statement of the prosecutrix (PW-1) herself, her mother (PW-2) and father (PW-3) and the mark sheet presented by the prosecution, Article-A and the Dakhil Kharij register, Exhibit P-10-C, are important. Regarding which, the statement of teacher Somanlal (PW-7), who was the acting head teacher of the primary school Bhothli, has been recorded. According to him, the prosecutrix was admitted to the school on 04/07/1994, then her date of birth was recorded as 21/01/1989. Thus, if we calculate the age of the prosecutrix on the date of incident i.e. 19/07/2004, then at the time of the incident, her age was around 15 to 16 years. Neither the prosecutrix herself nor any of her parents were able to tell the exact date of birth of the prosecutrix at the time of Court statements. In such a situation, it becomes necessary to consider the validity and reliability of the date

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of birth of the prosecutrix mentioned by teacher Somanlal in the Dakhal Kharij register, Exhibit P-10-C.

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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 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

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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 prosecutrix in the form of the school register was not sufÏcient 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

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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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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

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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 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 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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If I review the evidence presented in the light of the above judgment, it is clear that neither the prosecutrix nor her parents were able to tell the date of birth of the prosecutrix. The mother (PW-2) has stated in her Court statement that she does not know the date of birth of the prosecutrix, whereas the father (PW-3) has stated that the prosecutrix was born in the year 1989 but he does not remember the date or month. The father has also stated that he was the one who went to get her admitted to school, but there is no entry in any column of the Dakhil Kharij register (Exhibit P-10-C) that he had gone to get her admitted or there is no signature of his.

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Somanlal (PW-7) has admitted in his cross-

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examination that the Dakhal Kharij register (Exhibit P-10C) does not mention who came for admission. He has also admitted that there is no declaration form or application form in the Dakhal Kharij register in which the date of birth of the prosecutrix is mentioned and given for admission. He has also admitted that at the time of admission, he did not ask for any document related to the birth of the prosecutrix. He has also admitted that the number, serial number or date of the register is also not mentioned in the mark sheet or transfer certificate issued. He has also admitted that at the time of admission most of the parents of the children register the date of birth by stating the age of the child as less. He has not ruled out the possibility that the name of the person who got the prosecutrix admitted is not mentioned. Therefore, her other elderly grandparents can also get the admission done and hence he cannot give any definite opinion regarding the age of the prosecutrix. Thus, it is clear that the date of birth of the prosecutrix recorded in the Dakhal Kharij Register Exhibit P-10-C is not based on any valid document.

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As far as the oral statement of parents of the prosecutrix is concerned, it is noteworthy in this regard that both of them have accepted the fact that they have a total of 4 daughters, out of which the eldest daughter is elder than the prosecutrix (PW-1) by about 1.5-2 years. The mother (PW-3) has stated the age of the eldest daughter as 21 years, while her father has stated the age of the eldest daughter as 17 years, which shows that the parents are giving the age only on the basis of estimation. The mother (PW-2) has stated that the prosecutrix was admitted to school when she was 8-9 years old and she had also failed for 1-2 years. After the incident, she had left her studies.

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Whereas, the father has stated that when the prosecutrix was admitted to school, she was 6 years old and she has studied up to class VIII and had also failed for one year, she had not left her studies. Thus, there is a serious contradiction in the statement of the parents regarding the age. In view of this, this Court finds that the prosecution has failed to prove the fact that date of birth of the prosecutrix is 21.01.1989 and she was less than 16 or 18 years of age at the time of the incident.

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Since, the prosecutrix has been found to be a consenting party and the prosecution has failed to prove that the prosecutrix was below 18 years of age at the time of the incident. In such a situation, the benefit of doubt goes to the appellant.

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Consequently, the appeal is allowed and the conviction and sentence in question is set aside and the appellant is acquitted of the charges leveled against him, giving him the benefit of doubt.

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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

Lokesh Kumar v. State of Chhattisgarh

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Lokesh Kumar v. State of Chhattisgarh

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