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2018 Supreme(Chh) 695
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sharad Kumar Gupta, J.
Dhannuram Yadav - Appellants
Vs.
State of C.G. - Respondent
Criminal Appeal No. 627 of 2002
Decided On : 22-10-2018
For the Appellant :Atul Pandey, Advocate
For the Respondents: Vinod Tekam, Panel Lawyer
Headnote:
Indian Penal Code,1860 – Section 363, 366 and 376 – Criminal Procedure Code,1973 - Section 437-A - Scheduled caste and Scheduled tribe Prevention of Atrocities Act 1989 - Section 3(2)(v) - Indian Evidence Act, 1872 - Section 35 – Offence of rape – Kidnapping,abducting or inducing women - Prosecution story is that one month prior toprosecutrix was aged about 15 years - She was resident of village - Appellant used to say that he will marry her - One month prior to and thereafter he committed sexual intercourse with her on pretext of marriage - They had taken photograph - On he took her to stone quarry at Mandir Hasaud, by enticing on pretext of marriage - On her brother and other persons brought her back to her parental house - On she lodged an FIR - After completion of investigation charge-sheet was filed against him - Trial Court framed charges against appellant under Sections 363, 666, 376 IPC read with Section 3(2)(v) SCST Act - He abjured charges and faced trial - To bring home charges prosecution examined as many as 10 witnesses -He did not examine any witness on his defence - After conclusion of trial, trial court acquitted him of offence punishable but convicted and sentenced him as aforesaid – Held, prosecution also failed to produce any Admission Form of school which would have been primary evidence regarding age of prosecutrix - School Leaving Certificate produced by prosecution was also procured ,six days after incident and three days after arrest of appellant - As per that certificate also, she joined school in middle of session and left school in middle of session - Attendance in school of 100 days is also not reliable - Prosecutrix was admitted in school by, her brother - Said was not examined - Alleged School Leaving Certificate on basis of which age was entered in school was not produced - Prosecution failed to prove entry of aforesaid date of birth of prosecutrix in Kotwari Register and Declaration Form by examining author of same - Prosecution also failed to examine any person who had special means of knowledge of aforesaid date of birth of prosecutrix which he/she had informed at time of said entry to concerned authority which has been written in declaration form, that could have been main source of information for date of birth of the prosecutrix - Prosecution failed to give any explanation as to why it was not done - Court finds that prosecution has failed to prove beyond reasonable doubt charges punishable - Thus trial court committed illegality in convicting and sentencing appellant as aforesaid - Hence, appeal is allowed.
JUDGMENT :
Sharad Kumar Gupta, J.
1. In this criminal appeal, challenge is levied to the judgment of conviction and order of sentence; dated 9-5-2002 passed by the Special Judge, Raipur constituted under Scheduled caste and Scheduled tribe Prevention of Atrocities Act 1989 (hereafter called as SCST Act) in Sessions Trial No. 305/2000 whereby and whereunder he convicted and sentenced the appellant as under:--
| Sr. No. | Offence u/S. | Sentence | In default of payment of fine |
| 1. | 363, Indian Penal Code (for short 'IPC') | RI for 3 years + fine of Rs. 500/- | Additional RI for 1 month |
| 2. | 366, IPC | RI for 4 years + fine of Rs. 1,000/- | Additional RI for 2 months |
| 3. | 376, IPC | RI for 7 years + fine of Rs. 5,000/- | Additional RI for 10 months |
All the substantive jail sentences have been directed to run concurrently.
2. This is admitted by appellant that prosecutrix is the member of Scheduled caste and he is Yadav by caste, he was examined by Doctor.
3. In brief, the prosecution story is that one month prior to 09/06/2000 prosecutrix was aged about 15 years. She was resident of village Patseoni. Appellant used to say that he will marry her. One month prior to 09/06/2000 and thereafter he committed sexual intercourse with her on pretext of marriage. They had taken photographs. On 04/06/2000 he took her to stone quarry at Mandir Hasaud, by enticing on pretext of marriage. On 08/06/2000 her brother Lacchu and other persons brought her back to her parental house. On 09/06/2000 she lodged an FIR in PS. Chhura. After completion of the investigation charge-sheet was filed against him under Sections 363, 366, 376 IPC read with Sections 3(2)(v) of the Act. The trial Court framed charges against the appellant under Sections 363, 666, 376 IPC read with Section 3(2)(v) SCST Act. He abjured the charges and faced trial. To bring home the charges the prosecution examined as many as 10 witnesses. He did not examine any witness on his defence. After conclusion of the trial, trial court acquitted him of the offence punishable under section 3(2)(v) of SCST Act but convicted and sentenced him as aforesaid.
4. Shri Atul Pandey, counsel for the appellant strenuously argued that the prosecution has failed to prove that the age of prosecutrix was below 18 years. She was consenting party. Thus, aforesaid conviction and sentences are bad in the eyes of law and not sustainable. Thus, aforesaid conviction and sentences may be set aside and the appellant may be acquitted of the aforesaid charges.
5. Shri Vinod Tekam, Panel Lawyer for the State submitted that aforesaid conviction and sentences are based on clinching evidence led by the prosecution. He supported the aforesaid conviction and sentences and submitted that no interference is called for by this Court.
6. The first and foremost question for adjudication before this court is as to what was the age of prosecutrix one month prior to 09.06.2000.
7. As per the birth certificate Ex. P-7 the date of the birth of prosecutrix is 23/03/1984.
8. In Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796 the Hon'ble Supreme Court observed in paras-14 and 15 as under:
"14......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. 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.
15.....To render a document admissible under Section 35, three, conditions must
