Hori Lal Vs State of Chhattisgarh

_____________________________________________________________ For Appellant : Mr. Praveen Dhurandhar, Advocate appears through Legal Aid. For State : Mr. Avinash Singh, G.A.

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Hon'ble Smt. Justice Rajani Dubey

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Judgment on Board

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23.03.2026

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Considering that this case has been pending since 2008 and no one appears for the appellant today, in these circumstances, the Court directs Shri Praveen Dhurandhar, learned Panel Lawyer to assist the Court and contest the matter on behalf of the appellant.

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The Secretary, High Court Legal Aid Committee is directed to appoint Shri Praveen Dhurandhar, Advocate to contest the matter on behalf of

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the appellant and authorization letter in this regard be also issued.

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This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 29.08.2007 passed by learned Fourth Additional Sessions Judge, Durg in Sessions Trial No. 89/2007 , wherein the said Court convicted the appellant and sentenced him as under :-

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Conviction	Sentence
Under Section 376 of IPC	R.I. for 07 years and fine of Rs. 500/-,
	in default of payment of fine, to
	undergo additional R.I. for three
	months.
Under Section 363 of IPC	R.I. for 03 years and fine of Rs. 500/-,
	in default of payment of fine, to
	undergo additional R.I. for three
	months.
Under Section 366 of IPC	R.I. for 05 years and fine of Rs.
	1000/-, in default of payment of fine,
	to undergo additional R.I. for six
	months.

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(All the sentences are directed to run concurrently)

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The prosecution case, as per the records and the impugned judgment, is that on 12.02.2007, the father of the prosecutrix lodged a missing report at Police Station- Bhilai-3, alleging that the appellant had taken his daughter by allurement and the matter was taken up for investigation by the police. During the investigation, information was received that the prosecutrix was living with the appellant in Village

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Maradkather. She was recovered and stated that the appellant had committed forcible sexual intercourse with her. Based on her statement, a report under Section 376 IPC was lodged and she underwent medical examination. The accused was arrested and subjected to medical examination. The clothes worn by the accused and the prosecutrix at the time of the incident were seized and the prosecutrix’s vaginal slide was sent for chemical analysis. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate , 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 having abjured guilt was subjected to trial.

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In order to establish the charges against the accused persons, the prosecution has examined as many as 08 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence that he has been falsely implicated in this case. However, two witness examined by him in his defence.

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The learned trial Court after hearing the counsel for the respective parties and considered the material available on record thereby convicted and sentenced the accused/appellant as mentioned in inaugural 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

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circumstances of the case. The prosecution has failed to prove the age of the prosecutrix beyond reasonable doubt. The only document relied upon is the school register, but the person who wrote the date of birth at the time of admission was not examined. Therefore, the age mentioned in the school record cannot be treated as reliable proof. The admitted position emerging from the record is that the prosecutrix and the appellant were in a consensual relationship. The evidence clearly indicates a prior love affair, which probabilizes the defence version and renders the prosecution story doubtful. There is an unexplained delay in medical examination as the alleged incident took place on 12.02.2007, but the examination was conducted on 21.02.2007. The doctor has not found any signs supporting forcible intercourse, as such, prosecution has utterly failed to prove its case beyond reasonable doubt and findings recorded by learned trial court are highly perverse. So, 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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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 appellant for

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for the aforesaid offences.

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The learned trial Court finds that on the date of incident prosecutrix was aged about 15 years, 04 months and 12 days and learned trial Court relied upon the statement of Rakesh Kumar Pandey (PW-4), who is the In-charge of Principal of Govt. Middle School, Dabrapara and Exhibited P/-5-A, an attesting copy of Dakhil Kharij register.

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Rakesh Kumar Pandey (PW-4) Principal of Govt. Middle School, Dabrapara, Bhilai-3, District – Durg (C.G.) has stated that he was posted in school since 1994 as a Teacher and the police seized Dakhil Kharij Register on 16.06.2007 and as per the said register, the prosecutrix’s name was entered in Page No. 14 at Serial No. 75 and her date of birth is mentioned as 01.10.1991. Seizure memo is Ex. P/4, attesting copy of register is Ex. P/5 and Progress report card of ClassVI^th is Article-A.

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In his cross-examination, he admitted as under:-

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" मूलदाखि�लख़ारि�ज�जिजस्ट�्ቅ . 75 से 78 तककाले�मे�ेहाथकानहीं है।यहसहीहैकिकदाखि�लख़ारि�जपंजीके्ቅ . 75 में XX केपहले NN नाम खिल�ाहुआहैजिजसेकाटक� XX खिल�ागयाहै।..”

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Thus, it is clear from the statement of PW-4 that he was not the author of the entry made of the prosecutrix and no any relevant/supporting documents were filed by the prosecution to prove the entry that was made in the said register.

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PW-2 mother of the prosecutrix has stated that police seized progress report card of Class-VI^th of her daughter with regard to the date of birth.

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In this case, except Ex.P/5-A and Article-A, no other relevant/supporting documents regarding the date of birth of the prosecutrix was produced

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by the prosecution to prove the age of the prosecutrix below 18 years.

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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 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

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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 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

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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 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

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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 judgment, it is clear that PW-4 has admitted that in the said register, entry was not made by him with regard to the date of birth of the prosecutrix (PW-1) and also the author of the entry made in the said register was not examined by learned trial Court and so far as regards the age of the prosecutrix except Article-A and Ex. P/5-A nothing was produced to prove the same. Therefore, there is lack of clinching and admissible evidence to hold her minor on the date of incident.

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Prosecutrix (PW-1) has stated in her deposition that on the date of incident the accused called her over the phone to meet her and then she went with the accused to Durg by bus and susequently from Durg to Dhamdha and Dhamdha to Gandai, where she lived with the accused for about 12 days and the accused made sexual relationship with her, though she denied, but he did it forcefully.

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When the Court asked questioned, she answered as under:-

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" ा�ा :- न्यायालय्ቛ जबतुम्हा�ाकोईसंबंधअभि,०सेनहींथातबतुमउसकेकहने

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प�किबनाअपनेमाताकिपताकोबतायेअभि,यु्ሹ केघ� 12 किदनतककैसे�हीपूछेजाने प�सा्ቌीकहतीहैकिकउसकाअभि,यु्ሹ केसाथ्ቚे मसम्बंधथाइसका�णउसके कहनेप�उसकेसाथउसकेघ�गईथी। "

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In her cross-examination, she admitted that she did not create any scene anywhere on the way from Bhilai-3 to village of the accused, she went with the accused quietly and peacefully. Further admitted that she was living peacefully and was affectionate with the

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accused in his house for about 12 days.

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Thus, statement and conduct of the prosecutrix (PW-1) clearly shows that she is a consenting party to the act of the appellant.

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Dr. Ujjawala Dewangan (PW-7), who examined the prosecutrix (PW-1), opined that the prosecutrix was habitual of sexual intercourse and thereby gave her report vide Ex. P/4.

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In her cross-examination, she admitted that she did not find any internal or external injury on the body of the prosecutrix.

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The conduct of the prosecutrix clearly shows that she is the consenting party to the act of the appellant and also medical evidence has not duly corroborated with the prosecution case, therefore, under these circumstances of the case as also evidence on record, it would be improper to this Court to hold that the appellant has committed rape upon her, rather it reflects from the evidence that the prosecutrix herself had made consensual sexual intercourse with the appellant. Thus, the learned trial Court did not appreciate all these facts minutely and thereby has wrongly convicted the appellant for the aforesaid offences.

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Ex consequenti , the appeal is allowed and the impugned judgment dated 29.08.2007 of the learned trial Court is hereby set aside. The appellant is acquitted of the charges leveled against him.

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The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a 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

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filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon 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

AMIT PATEL

Hori Lal v. State of Chhattisgarh

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Hori Lal v. State of Chhattisgarh

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