Chattisgarh High Court
Bhupendra Chauhan vs State Of Chhattisgarh on 24 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:4505
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 43 of 2022
Bhupendra Chauhan S/o Shri Manharan Lal Chauhan Aged About 26
Years R/o Village Dhuma P.S. Sargaon District Mungeli Chhattisgarh.
... Appellant
versus
State Of Chhattisgarh Through District Magistrate Mungeli, District
Mungeli Chhattisgarh.
... Respondent
For Appellant : Mr. Dheerendra Pandey, Advocate.
For Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer.
Hon’ble Smt. Justice Rajani Dubey, J
Judgment On Board
24/01/2025
Challenge in this appeal is to the legality and validity of the
judgment of conviction and order of sentence dated 17.12.2021
passed by the Special Judge (FTSC), POCSO Act, Mungeli in Special
Criminal Case No.26/2019 whereby the appellant stands convicted
under Section 376 of IPC and Section 6 of Protection of Children from
Sexual Offences Act, 2012 (in short “the Act of 2012”) and keeping in
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view the provisions of Section 42 of the Act of 2012, sentenced under
Section 6 of the Act of 2012 to undergo RI for 10 years, pay a fine of
Rs.5,000/- and in default thereof to suffer additional SI for three
months.
02. Case of the prosecution, in brief, is that on 17.7.2019 the
prosecutrix made a written complaint that in January, 2019 she was
called by the appellant near school and when she went there at 7.00
pm, the accused/appellant caught hold of her and forcibly had sexual
intercourse with her on the threat of life. Thereafter he continued to
have sexual intercourse with her for the last six months as a result of
which she got pregnant. She narrated the whole incident to her parents
and then on her report offence under Sections 376, 506 of IPC and
Sections 4 & 6 of the Act of 2012 was registered against the
accused/appellant.
03. During investigation, medical examination of the prosecutrix was
got done, her statement under Section 164 of CrPC was recorded, spot
map was prepared and statements of witnesses were recorded. After
completing the usual investigation, charge sheet under Sections 376,
506 of IPC and Section 4 & 6 of the Act of 2012 was filed against the
accused before the concerned jurisdictional Magistrate. Learned trial
Court framed charges under Section 376, 506 Part-II of IPC and
Section 6 of the Act of 2012, to which the accused/appellant abjured
his guilt and prayed for trial.
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04. In order to substantiate its case the prosecution examined 12
witnesses in all. Statement of the accused was recorded under Section
313 of CrPC wherein he denied all the incriminating circumstances
appearing against him in the prosecution case, pleaded innocence and
false implication. However, he did not examine any witness in defence.
05. After hearing counsel for the respective parties and appreciation
of oral and documentary evidence on record, the learned trial Court
convicted and sentenced the appellant as mentioned above. Hence
this appeal.
06. Learned counsel for the appellant submits that the impugned
judgment is per se illegal and contrary to the material available on
record. There is no conclusive evidence on record to connect the
appellant with the crime in question. The findings of learned trial Court
are based on mere conjecture and surmises. Even assuming the
whole prosecution case as it is, no offence under Section 6 of the Act
of 2012 is made out against the appellant. There are many
contradictions and omissions in the statements of the prosecution
witnesses which have been overlooked by learned trial Court. The
evidence on record clearly suggests that the prosecutrix was a
consenting party to the act of the appellant and did not disclose her
relation with the appellant to her mother and father for a considerable
period. As regards age of the prosecutrix, the prosecution has failed to
prove that she was minor on the date of incident. There is no such
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reliable and clinching evidence adduced by the prosecution regarding
minority of the prosecutrix. For all these reasons, the impugned
judgment is not legally sustainable and hence the appellant deserves
to be acquitted of all the charges.
Reliance has been placed on the decision of the Hon’ble
Supreme Court in the matter of Uday Vs. State of Karnataka reported
in (2003) 4 SCC 46 and in Deepal Gulati Vs. State reported in (2013)
7 SCC 675.
07. On the other hand, learned counsel for the State opposing the
contention of the appellant submits that in view of oral and
documentary evidence on record, the learned trial Court has rightly
convicted and sentenced the appellant by the impugned judgment
which calls for no interference by this Court. The present appeal being
without any substance is liable to be dismissed.
08. Heard learned counsel for the parties and perused the material
available on record.
09. It is clear from the record of learned trial Court that the appellant
was charged under Sections 376, 506 Part-II of IPC and Section 6 of
the Act of 2012 and after appreciation of oral and documentary
evidence, learned trial Court while acquitting him of the charge under
Section 506 Part-II of IPC, convicted and sentenced him as mentioned
in para 1 of this judgment.
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10. First of all, this Court proceeds to examine the evidence on
record to ascertain whether on the date of incident the prosecutrix was
below 18 years of age or not?
11. PW-1 prosecutrix states that she does not remember her date of
birth. In cross-examination she admits that she is two years younger to
her sister Sakun who would be about 25-26 years at present. In para
05 of her cross-examination she admits that at present she is 21-22
years.
12. PW-2 mother of the prosecutrix admits that her eldest daughter
is getting 26-27 years at present and after her birth, she delivered twins
and thereafter the prosecutrix was born. She admits that she admitted
the prosecutrix to school and got her estimated age recorded in the
school. She also admits that while admitting the prosecutrix to school,
no birth certificate of her was submitted.
13. PW-3 father of the prosecutrix states that he does not remember
the age of the prosecutrix.
14. PW-4 Rakhi Rajput, Incharge Head Mistress, states that the
police seized original Dakhil-Kharij register of the school regarding age
of the prosecutrix vide seizure memo Ex.P/8. As per said register, date
of birth of the prosecutrix is 10.8.2004 and she was admitted to school
on 29.6.2010 in Class-1 and she left the school on 30.4.2015. The
original Dakhil-Kharij register is Ex.P/9 and its attested copy is Ex.P/9C
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which bears her signature from A to A part. In cross-examination she
admits that she did not admit the prosecutrix to school and that she
cannot tell as to on what basis her date of birth was recorded while
being admitted to the school. She states that she was not posted at
the school at the time of her admission.
15. 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:
“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 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.
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:-
“The age of a person as recorded in the school register
7or 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
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.”
16. 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
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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:-
“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.
“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 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.”
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
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prosecutrix was such a crucial factor in the case.”
17. In the case in hand, though in the Dakhil-Kharij register (Ex.P/9)
the age of the prosecutrix is recorded as 10.8.2004 but PW-4 Head
Mistress in cross-examination has admitted that entry in Ex.P/9 was
not made by her and she does not know as to on what basis the said
date of birth was entered in the Dakhil-Kharij register. Further,
statements of the prosecutrix and her family members also do not
disclose the date of birth of the prosecutrix or even suggest that she
was minor on the date of incident. Rather their evidence suggests that
she was above 18 years of age at the relevant time. Thus, in light of
aforesaid decisions of the Hon’ble Supreme Court, this Court is of the
opinion that in the present case, there is no such clinching and legally
admissible evidence brought on record by the prosecution to prove the
fact that the prosecutrix was minor on the date of incident, yet the
learned trial Court has recorded in the impugned judgment that she
was minor. Hence the finding so recorded by the learned trial Court is
hereby set aside and it is held that she was major on the date of
incident.
18. Now it is to be seen whether the appellant had committed
forcible sexual intercourse with the prosecutrix or it was a consensual
act?
19. PW-1 prosecutrix states in her deposition that she was
impregnated by the accused regarding which she made a written
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complaint to the police vide Ex.P/1 which bears her signature from A to
A part. In cross-examination she admits that in the written complaint of
Ex.P/1 as also in the FIR, there is no mention of day and date. She
also admits that she did not disclose the incident to anyone for six
months. She denied the suggestion that she had love affair with the
accused. However, she admits that the police arrested other boys of
the village also but they were later released and the accused was
detained. She denied the suggestion that they have enmity with the
accused and his family and that she is making false statement at the
instance of her parents.
20. PW-2 mother of the prosecutrix states that seeing the physical
changes in the prosecutrix when she asked about it, she disclosed that
the accused has committed immoral act with her as a result of which
she got pregnant. She took the prosecutrix to hospital for medical
examination where the doctor informed her that the prosecutrix is four
months pregnant. Thereafter a village panchayat was held where she
was advised to lodge a report and so a report was lodged by the
prosecutrix against the accused. In cross-examination she admits that
her daughter/prosecutrix did not inform her about the incident and it
was disclosed only when there were physical changes in her body.
Though she denies the suggestion that the prosecutrix had illicit
relation with other boys of the village but admits that those boys were
also detailed by the police in this case but later on released. She
denies the suggestion that she is falsely implicating the accused or that
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prior to the incident they have had quarrel with the accused. However,
she volunteers that after the incident the accused had made them run
for his false implication.
21. PW-3 father of the prosecutrix deposes that it is the appellant
who committed immoral act with the prosecutrix as a result of which
she got pregnant and delivered a female child. He admits that he has
not produced any document regarding paternity of the child of the
prosecutrix.
22. PW-5 Dr. Priti Bala medically examined the prosecutrix on
17.7.2019 and noticed that there were no sign of any injury on her
body and she was carrying pregnancy of 24 to 26 weeks. In her
opinion, the prosecutrix was habitual to sexual intercourse.
23. Close scrutiny of the evidence makes it clear that the prosecutrix
was a consenting party to the act of the accused/appellant. Learned
trial Court has also held that she was a consenting party but
considering the fact that she is below 18 years of age, held the
appellant guilty of the aforesaid crime. She admitted in her deposition
that she did not disclose her relationship with the appellant for six
months to anyone. Mother of the prosecutrix states that when she
noticed physical changes in the prosecutrix she enquired from her and
then only she narrated the whole incident to her. From the statement of
the prosecutrix under Section 164 of CrPC also it is clear that physical
relation between the appellant and the prosecutrix was consensual.
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Statements of mother and father of the prosecutrix also nowhere
suggest that the appellant had forcible sexual intercourse with the
prosecutrix. Thus, considering the manner in which the incident took
place, the conduct of the prosecutrix during the said incident and
subsequent thereto, this Court finds that the learned trial Court rightly
recorded the finding that prosecutrix was a consenting party to the act
of the appellant. However, it has fallen into error while assessing the
age of the prosecutrix and holding her minor on the date of incident. As
already observed in the preceding paragraph, the prosecution based
on the evidence adduced by it has utterly failed to prove that she was a
minor at the relevant time. In these circumstances, conviction of the
appellant under Section 376 of IPC and Section 6 of the Act of 2012 is
legally not sustainable.
24. In the result, the appeal is allowed. The impugned judgment is
hereby set aside and consequently, the appellant is acquitted of the
charges under Section 376 of IPC and Section 6 of the Act of 2012.
The appellant is reported to be in jail, therefore, he be set free forthwith
if not required in any other case.
Keeping in view the provisions of Section 437-A of CrPC,
appellant is also directed to furnish a personal bond in terms of form
No.45 prescribed in the Code of Criminal Procedure of 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
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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.
The record of the trial Court along with copy of this judgment
be sent back immediately to the trial Court concerned for compliance
and necessary action.
Sd/
Digitally
(Rajani Dubey)
MOHD signed by
Judge
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan
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