Bhiyam Singh Vs State of Chhattisgarh

Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 4.9.2009 passed by learned Additional Sessions Judge, Manendragarh, Distt. Korea whereby the appellant stands convicted and sentenced as under:

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Conviction	Sentence
Under Section 363 of IPC.	RI for 7 years, pay a fine of
	Rs.3000/-, in default thereof to
	suffer additional RI for 6 months.
Under Section 366 of IPC.	RI for 7 years, pay a fine of
	Rs.3000/-, in default thereof to
	suffer additional RI for 6 months

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Both the sentences were directed to run concurrently.

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Case of the prosecution, in brief, is that on 7.2.2009 at around 8 pm, the prosecutrix, aged about 15 years, left her house and did not return. She was searched in the nearby areas but was not traceable. During the course of enquiry on missing report, the police came to know on 16.2.2009 that she is at village Ghaghra. Thereafter, the police recovered her from the custody of the appellant. Both of them were subjected to medical examination. During investigation, statements of the witnesses were recorded, clothes of the prosecutrix and the appellant worn at the time of incident were seized; co-accused Dalbir @ Bablu was also arrested; school certificate of the prosecutrix was seized; spot map was prepared and the seized articles were sent to FSL for examination. After completion of usual investigation, charge sheet was filed under Sections 363, 366, 376, 34 of IPC.

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Learned trial Court framed charges under Sections 363, 366, 376 and 343 of IPC against the accused/appellant and under Sections

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109 read with Sections 363, 366, 376 and 343 of IPC against coaccused Dalbir Singh @ Bablu. The accused persons abjured their guilt and prayed for trial. In order to substantiate its case the prosecution examined 11 witnesses. Statements of the accused were recorded under Section 313 of CrPC wherein they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication.

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After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court while acquitting co-accused Dalbir Singh of all the charges and the accused/appellant of the charges under Sections 376 and 343 of IPC, convicted and sentenced him as mentioned in the opening paragraph of this judgment. Hence this appeal.

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Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court has committed illegality in holding the prosecutrix below 18 years of age on the date of incident whereas the prosecution failed to produce admission form with declaration of parents regarding date of birth during admission in primary school. The doctor who examined the prosecutrix suggested for ossification test for confirmation of age. However, the prosecution did not file any ossification test report. She submits that the prosecutrix (PW-2) categorically states that when her mother and father went to the house

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of her maternal grand-father, she voluntarily went with the appellant. On the same set of evidence, the co-accused Dalbir Singh has been acquitted of all the charges whereas the appellant has been held guilty under Sections 363 and 366 of IPC. Therefore, the impugned judgment as against this appellant being illegal is liable to be set aside.

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Per contra, learned counsel for the State opposing the contention of the appellant submits that the learned trial Court after minute appreciation of the oral and documentary evidence on record has rightly convicted and sentence the appellant by the impugned judgment and as such, the present appeal lacks any substance and is liable to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of learned trial Court that learned trial Court framed charges under Sections 363, 366, 376 & 343 of IPC against the accused/appellant and Section 109 read with Sections 363, 366, 376 and 343 of IPC against co-accused Dalbir Singh @ Bablu. After appreciation of oral and documentary evidence, the learned trial Court while acquitting the accused/appellant of the charges u/s 376 and 343 of IPC and co-accused Dalbir Singh of all the charges, convicted and sentenced the appellant u/s 363 & 366 of IPC as

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mentioned in para 1 of this judgment on the ground that the prosecutrix is above 16 years and below 18 years of age.

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As per the prosecution, the prosecutrix was aged about 15 years on the date of incident. PW-2 prosecutrix states that the police seized her mark sheet of Class V and greeting card as per seizure memo Ex.P/3 & P/4. In cross-examination she states that now she is 18 years of age. She admits that at the time of her admission in school, her age was wrongly mentioned. PW-3 father of the prosecutrix states that his daughter is now 18 years of age and he does not remember her date of birth. He admits that at the time of admission of the prosecutrix in school, he did not mention her date of birth.

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PW-7 teacher in Primary School, Baheratola states that the prosecutrix was admitted in the school on 28.6.2006 in Class VI and in the admission-discharge register her date of birth is recorded as 14.7.1994. The said register is Ex.P/12 and seizure memo is Ex.P/8. In cross-examination he admits that he has not brought the register of Primary School. He also admits that at the time of admission in primary school, the parents fill up declaration form.

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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 & 48 of its judgment as under:

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“40.Undoubtedly, the transfer certificate, Ex.P16 indicates that

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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 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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48. 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.4 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

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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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12. The Supreme Court in the matter of Manak Chand alias Mani vs. 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

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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 prosecutrix in the form of the school register was not sufficient 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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13. In the case in hand, the prosecutrix herself admits that at the time of her admission in school, her age was wrongly mentioned. Her father (PW-3) states that he does not remember her date of birth. He admits that at the time of her admission in school, he did not mention her date of birth. Further, PW-7 teacher in Primary School, Baheratola states that in the admission-discharge register her date of birth is recorded as 14.7.1994. However, in cross-examination he admits that he has not brought the register of Primary School. He also admits that at the time of admission in primary school, the parents fill up

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declaration form. No such form is available on record. The prosecution has failed to establish as to on what basis her date of birth was recorded in the admission-discharge register. Thus, in light of aforesaid decisions of the Hon'ble Supreme Court, looking to the nature and quality of evidence adduced, this Court is of the opinion that there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was below 18 years of age on the date of incident. However, learned trial Court did not properly appreciate the oral and documentary evidence on record and therefore, the accused/appellant deserves to be acquitted of all the charges.

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14. In the result, the appeal is allowed and the impugned judgment convicting and sentencing the accused/appellant under Sections 363 & 366 of IPC is hereby set aside. He is acquitted of these charges.

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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 alongwith an undertaking that in the event of 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 record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and

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necessary action.

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Sd/
Digitally
signed by (Rajani Dubey)
MOHD MOHDAKHTAR
AKHTAR KHAN Judge
KHAN Date:2026.04.15
15:15:41
+0530
Khan

Bhiyam Singh v. State of Chhattisgarh

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Bhiyam Singh v. State of Chhattisgarh

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