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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
GOUTAM BHADURI, SANJAY S. AGRAWAL, JJ.
Rostam @ Bablu S/o Nijamuddin Ansari – Appellant
Versus
State of Chhattisgarh – Respondent
Cr. Appeal Nos. 52, 127 of 2020
Decided On : 19-09-2023
Protection of Children from Sexual Offences Act, 2012- Section 4 and 6 – Indian Penal Code, 1860 – Section 363, 366 A, 376(2)(n), 34, 506, 368 – Criminal Procedure Code, 1973 - Section 164, 437-A – Kidnaps from lawful guardianship - Committed sexual intercourse - Appeal against conviction - Appeals have been preferred against judgment of conviction and order of sentence passed in Special Criminal Case - Held, It appears from its perusal that prosecutrix was given admission in 4th Standard even without obtaining her transfer certificate and no reason whatsoever has been assigned as to how admission was given to her as such - That apart, even doctor (PW-3), who examined prosecutrix, was unable to state her age - Evidence led by prosecution, entries made in alleged “Dakhil Kharij Register” (Ex.P-3C) pertaining to date of birth of prosecutrix cannot be relied upon and, therefore, conviction of appellants cannot be based upon an approximate date which is not found to be supported by any cogent and reliable evidence - Consequently, appellants are entitled to get benefit of doubt – Appeals allowed.
JUDGMENT :
SANJAY S. AGRAWAL, J.
1. Since both these appeals have been preferred against the judgment of conviction and order of sentence dated 13.12.2019 passed by the Special Judge (POCSO Act, 2012), Pratappur, District Surajpur (C.G.) in Special Criminal Case No. 02/2019, therefore, they are being disposed of by this common order.
2. In Rostam @ Bablu vs. State of Chhattisgarh, CRA No. 52/2020 the appellant has been convicted and sentenced as under:
| Conviction | Sentence |
| U/s 363 of IPC | R.I. for 5 years and fine amount of Rs. 500/- and in default of payment to fine further R.I. for 3 months |
| U/s 366 A of IPC | R.I. for 7 years and fine amount of Rs. 500/- and in default of payment of fine further R.I. for 3 months |
| U/s 376(2)(n) of IPC | Life imprisonment and fine amount of Rs. 2000/- and in default of payment of fine further R.I. for 6 months. All sentences directed to run concurrently. |
Mesraj @ Misraj Ansari and Others vs. State of Chhattisgarh, CRA No. 127/2020 the appellants have been convicted and sentenced as under:
| Conviction | Sentence |
| U/s 363/34 of IPC | R.I. for 5 years and fine amount of Rs. 500/- and in default of payment to fine further R.I. for 3 months |
| U/s 366 A of IPC | R.I. for 7 years and fine amount of Rs. 500/- and in default of payment of fine further R.I. for 3 months |
3. Briefly stated the facts of the case are that on 11.03.2019 at 12:50 hours, a report was lodged by the prosecutrix's father, namely, Rehamtulla to the effect that his daughter, who is minor aged about 16 years, has gone somewhere else on 05.03.2019 at about 8:00 PM without intimating to anyone and did not return and, it was alleged that he has apprehension that the appellant-Rostam has abducted his daughter while alluring her. Based upon the said information, an FIR was registered by the Police Station Pratappur, District-Surajpur against him for the offence punishable under Section 363 of IPC. During investigation, it was informed by the father of the prosecutrix on 10.05.2019 that his daughter has returned home on 08.05.2019 and intimating him that the appellant-Rostam has taken her to Jabalpur while alluring her and accordingly, Recovery Panchnama (Ex.P-8) was prepared on 10.05.2019 in presence of the witnesses. After her recovery as such, she was sent for medical examination and her medical report (Ex.P-7) was submitted by Dr. Suchita Nirmala Kindo (PW-3) while opining that she is habitual to have sexual intercourse. The statement of the prosecutrix was recorded under Section 164 of Cr.P.C. by the Judicial Magistrate First Class, Surajpur on 27.05.2019 vide Ex.P-12. In order to ascertain her age, the Investigation Officer has seized the Dakhil Kharij Register (Ex.P-3C) from the Headmaster of the concerned school. The appellants were arrested and the spot map was prepared by concerned Patwari vide Ex.P-4 and after completion of the investigation, the charge sheet was submitted against the appellants on 10.07.2019 for the offence punishable under Sections 363, 366A, 376(2)(n), 506, 368 read with Section 34 of IPC and Section 4 and 6 of the POCSO Act, 2012, while showing some of the accused persons, namely, Smt. Shafeena, Alijan, Smt. Kulsum as absconding.
4. The appellants have denied the charges and claimed to be tried.
5. In order to bring home the guilt of the appellants, the prosecution has examined as many as 15 witnesses, while none was examined by the appellants in rebuttal.
6. After considering the evidence led by the prosecution, the appellants have been convicted and sentenced as mentioned herein-above.
7. Being aggrieved, the appellants have preferred these appeals.
8. Learned counsel appearing for the appellants, while inviting attention to the statements of the prosecutrix and her parents, submits that the prosecutrix was major on the date of alleged incident, occurred on 05.0
SupremeToday
The validity of consent in cases involving minors and the admissibility of official records as evidence.
The prosecution must prove the victim's age beyond reasonable doubt; reliance on official records alone is insufficient without corroborative evidence.
The prosecution must provide conclusive evidence of a victim's age and lack of consent in sexual assault cases; insufficient evidence leads to acquittal.
The prosecution failed to prove the age of the prosecutrix was below 18 years and that the appellant committed forcible sexual intercourse, leading to the acquittal of the appellant.
The prosecution failed to prove the prosecutrix's age under 18 years and her consent negated the charges of abduction and sexual assault.
The judgment emphasizes the admissibility of school registers to determine the age of a minor, the reliability of the victim's testimony in sexual offence cases, and the mandatory minimum sentences u....
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