Sumant Sarathi vs State of Chhattisgarh.

Pritinker Diwaker, J.—This appeal is directed against judgment dated 24-01-2004 passed by 8th Additional Sessions Judge, (FTC), Raipur in Sessions Trial No. 338/2003. By the impugned judgment, accused/appellant Sumant Sarathi has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:-

Case of the prosecution, in brief, is as under:-

Prosecutrix (PW-1) (in purview of Section 228A IPC, name of the prosecutrix is not being mentioned) is daughter of Mohanlal Dewangan (PW-5). She was below 16 years of age on the date of incident. Mohanlal Dewangan (PW-5) is her natural guardian. They were residing at Village Raipura, Police Station Purani Basti, Raipur. On 23-05-2003, at about 9.30 pm., prosecutrix (PW-. 1) had gone for urination. When she did not return home, her father Mohanlal Dewangan (PW-5) made search for her but she was not found. Mohanlal Dewangan (PW-5) lodged First Information Report (Ex. P-5) in Police Station Purani Basti, Raipur. The appellant took prosecutrix (PW-1) to Kharora Railway Station thereafter he took her to Raigarh and then they went to Donarpur, Kolkata. The appellant committed sexual intercourse with prosecutrix (PW-1). During investigation, when it was came to know that the appellant and prosecutrix (PW-1) were present in Donarpur, Kolkata in the house of one Rahim, the police and father of the prosecutrix Mohanlal Dewangan (PW-5) left for Donarpur, Kolkata where prosecutrix (PW-1) and the appellant were present. Recovery Panchnama (Ex. P-6) was prepared at the spot and they were taken to Police Station Purani Basti, Raipur. Prosecutrix (PW-1) was sent to District Hospital, Raipur for medical examination vide Ex. P-4. Dr. Neeta Bhatnagar (PW-6) examined the prosecutrix (PW-1) and gave her report (Ex. P-8), in which, she did not find any injury on the body of the prosecutrix (PW-1). Her hymen was old torn. No injury or swelling or redness or blood was seen in the vagina. 2 slides of vaginal swab were prepared which were seized vide Ex. P-2 and sent to FSL, Raipur for chemical examination. The appellant was also sent for medical examination.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Raipur who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by 8th Additional Sessions Judge (FTC), Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Y.C. Sharma, Shri Vivek Rathore and Shri Pushkar Sinha, learned counsel for the appellant argued that on the date of incident, age of prosecutrix (PW-1) was above 16 years. They further argued that the finding given by the Trial Court is perverse. Prosecutrix (PW-1) left her house and went with the appellant willingly. She had several opportunities-to run away but she did not do so. It appears that the prosecutrix was a consenting party. On the date of incident, the prosecutrix was above 16 years of age and she left her parental house willingly, therefore, the appellant cannot be convicted under Sections 363, 366 and 376 IPC. The appellant is entitled for acquittal.

On the contrary, Shri R.R. Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court.

Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 338/2003.

Now, I shall examine whether on the date of incident the age of the prosecutrix was below 16 years or not?

In Subelal Vs. State of M.P. (Now C.G.), , the High Court of Chhattisgarh observed thus:

In Alamelu and another Vs. State represented by Inspector of Police, the Supreme Court held that the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s. 35 of the Evidence Act, 1872. However, the admissibility of such a document would-be of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court held that-the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. In the present case, though PW-10 admitted to issue the transfer certificate (Ex.-P/15) on the basis of entry in the school register, but the entry in the school register, by which, the prosecutrix was admitted in Class itself was not proved.

In Satpal Singh Vs. State of Haryana, the Hon''ble Supreme Court observed thus:

A document is admissible u/s 35 of the Evidence Act, 1872 (hereinafter called as "the Evidence Act") being a public document if prepared by a government official in the exercise of his official duty. However, the question does arise as to what is the authenticity of the said entry for the reason that admissibility of a document is one thing and probity of it is different.

Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible u/s 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.

In State of Chhattisgarh Vs. Lekhram, he Hon''ble Supreme Court observed thus:

A register maintained in a school is admissible in evidence to prove date of birth of the person concerned-in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence in this case as the same was recorded on the basis of the statement of the mother of the prosecutrix.

Prosecutrix (PW-1) deposed that her age was 16 years on the date of her deposition in the Court. Mohanlal Dewangan (PW-5) deposed that the age of prosecutrix (PW-1) was 15 to 16 years. Her date of birth is 26-12-1987. Laxmidhar Jha (PW-3) deposed that he was posted at Govt. High School Raipur as Asst. Teacher since 1985. Prosecutrix (PW-1) has studied in his school. Ex. P-3 is a dakhil kharij panji and Ex. P-3-C is its photocopy. He further deposed that in dakhil kharij panji the date of birth of the prosecutrix is mentioned as 26-12-1987. He further deposed that he recorded the date of birth of the prosecutrix on the basis of transfer certificate (T.C.) issued by the Government Middle School, Bemetara, Distt. Durg.

Mohanlal Dewangan (PW-5), in cross examination, in para 11, specifically deposed that the date of birth of prosecutrix (PW-1) is 26-12-1987. He was cross examined by the defence counsel in length but nothing could be elicited to doubt his testimony.

In Harpal Singh and Another Vs. State of Himachal Pradesh, , the Hon''ble Supreme Court observed that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible u/s 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence.

Prosecutrix (PW-1) studied in Govt. Higher Secondary School, Raipur and she also studied in Govt. Middle School. Bemetara, Distt. Durg. Both schools are Govt. Schools and Mohanlal Dewangan (PW-5) specifically deposed that the birth place of the prosecutrix (PW-1) was Bhadrali and she studied in Primary School, Bhadrali. He himself admitted that the date of birth of prosecutrix (PW-1) is 26-12-1987.

The date of occurrence is 23-05-2003 and Ex. P-3-C is a document made before the occurrence and can be relied upon safely when such document is admissible u/s 35 of the Evidence Act. More so, the entry of dakhil kharij panji was made by Laxmidhar Jha (PW-3) himself. He specifically deposed that on the basis of transfer certificate, he entered the date of the birth of the prosecutrix (PW-1) in dakhil kharij panji and father of the prosecutrix Mohanlal Dewangan (PW-5) specifically deposed that the date of birth of prosecutrix (PW-1) is 26-12-1987.

The date of occurrence is 23-05-2003 and the date of birth of prosecutrix (PW-1) is 26-12-1987, therefore, on the date of occurrence, the prosecutrix (PW-1) was below 16 years of age. Therefore, I do not see any reason to hold that prosecutrix (PW-1) was major on the date of incident.

Prosecutrix (PW-1) deposed that she and the appellant had written letters to each other prior to 2 years of the date of incident. She further deposed that her friend Mongara (PW-7) knew their love affair. When she met the appellant, Mungara (PW-7) was also present there.

Looking to paragraphs 5, 6, 12, 13 and 18 of deposition of prosecutrix (PW-1), it appears that she accompanied the appellant and they went to Kharora, Raigarh and Donarpur (Kolkata). The prosecutrix visited many places with the appellant but she did not make any complaint and accompanied him in normal manner. This shows that she was consenting party for sexual intercourse but she was below 16 years of age on the date of occurrence, therefore, her consent was of no consequence and was immaterial.

For the foregoing reasons, I do not find any infirmity in the finding recorded by the Trial Court and also see no reason to interfere with the quantum of punishment, therefore the appeal fails and is accordingly dismissed. The appellant is on bail. He shall surrender before the Trial Court to serve the remaining part of the sentences. Copy of this judgment be sent to the concerned Court for information and compliance.