Chattisgarh High Court
Mousam Suman vs State Of Chhattisgarh on 24 January, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
Neutral Citation
2024:CGHC:2575-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1558 of 2023
• Mousam Suman S/o Shri Mousam Mutaiya Aged About 25
Years R/o Of Vengtota, Chintur (Telangana).
---- Appellant
Versus
• State Of Chhattisgarh Through- Police Station Arrabor, District :
Sukuma, Chhattisgarh
---- Respondent
For Appellant : Shri Praveen Dhurander, Advocate
For Respondent /State : Shri Sangharsh Pandey, GA
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Arvind Kumar Verma, Judge
Judgment on Board
Per Arvind Kumar Verma, J.
24/01/2024 This appeal is directed against the impugned judgment of conviction and order of sentence dated 12.07.2023 passed by the Additional Sessions Judge, (FTC) South Bastar, Dantewada in Special Sessions Case No. 23/2020 whereby and whereunder the appellant has been held guilty for commission of the offence under Section and sentenced as described below :
Offence Punishment Under Section 363 IPC RI for 3 years and to pay fine of Rs. 500/-, in default of payment of fine to further undergo RI for one year Neutral Citation 2024:CGHC:2575-DB 2 Under Section 366 IPC RI for 3 years and to pay fine of Rs. 500/-, in default of payment of fine to further undergo RI for one year Under Section 376(3) IPC RI for 20 years and to pay fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for 1 year
Under Section 6 of the POCSO RI for 20 years and to pay fine of Act Rs. 1,000/- in default of payment of fine to further undergo RI for one year All the sentences were ordered to run concurrently
2. As per prosecution case, victim/prosecutrix has made a written complaint at police station Errabore, District Sukma alleging that appellant has developed physical relation with the prosecutrix on the pretext of marriage. It is further case of the prosecution that on account of the said physical relation she became pregnant and has given birth to a child and thereafter when she asked the appellant for marriage, he refused and got absconded. On the above written complaint made by the prosecutrix, FIR (Ex.P-2) was registered against the appellant for the offence punishable under Sections 363,366,376 (3) IPC and 6 of the Protection of Children from Sexual Offences Act (for short "POCSO Act"). Spot map was prepared by the police. Thereafter, the Scholar Register was seized in relation to the date of birth of the prosecutrix (as per prosecution case 16 years) and thereafter after taking consent from the family members of the prosecutrix she was referred to medical examination and Dr. Manisha Pradhani (PW-5) has examined her and gave the medical report Ex.P- 14 and she opined that the hymen was found ruptured and it seems like recently she has given birth to a child and she referred the Neutral Citation 2024:CGHC:2575-DB 3 prosecutrix to Radiologist for age determination. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded. Accused/appellant was arrested and after recording the statement of the witnesses, blood samples of the new born child and the appellant were taken and sent for DNA analysis to the Forensic Science Laboratory, Raipur. Appellant was also medically examined by Dr. Mayank vide Ex.P-35 and he opined that the appellant was capable of performing sexual intercourse. After completion of investigation, charge-sheet was filed against the appellant for the offence under Sections 363, 366 and 376(3) of IPC and 6 of the POCSO Act followed by framing of charge by the trial court accordingly.
3. In order to establish the charge against the appellant, the prosecution has examined 9 witnesses. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case. After appreciation of evidence available on record, learned trial Court has convicted the appellant and sentenced him as mentioned in paragraph-1 of this appeal. Hence this appeal by the appellant.
4. Learned counsel for the appellant has argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix.
Neutral Citation 2024:CGHC:2575-DB 4 School Admission and Discharge Register is a weak type of evidence. There is no any Kotwari Register or ossification report, produced by the prosecutrix to determine her actual age on the date of incident, that she was below 18 years of age. It is further argued by the learned counsel for the appellant that in her cross-examination the prosecutrix has admitted that she was 18 years of age, her mother (PW-2) has also stated that the date of birth has been wrongly mentioned in the school admission and discharge register. It is further argued by the learned counsel for the appellant that the prosecutrix herself went along with the appellant of her own will and no alarm was raised by her while she roamed with the appellant from one place to another. He further submits that if the conduct of the prosecutrix is seen in its entirety, it is clear that she had been a consenting party to the act of the appellant having developed an intimacy with him and nowhere she appears to have resisted while making physical relation. Therefore, the alleged offences of the IPC and the POCSO Act are not made out against the appellant, hence, he is entitled for acquittal.
5. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that prosecutrix was minor and below the age of 18 years on the date of incident, which is proved by the School Admission and Discharge Register, which shows the actual date of birth of the prosecutrix as 08.07.2003. School Admission and Discharge Register is an admissible piece of evidence to determine age of the prosecutrix, therefore, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference.
Neutral Citation 2024:CGHC:2575-DB 5
6. Counsel for the objector/complainant submits that the prosecutrix is now aged about 23 years old and she was 19 years of age at the time of incident and therefore she has no objection. He further submits that the appellant and the prosecutrix got married and out of their wedlock they are having two children and therefore she has no objection, if the appellant is acquitted of the charges levelled against him.
7. We have heard learned counsel for the parties, and perused the record.
8. In order to consider the age of the prosecutrix we have to examine the evidence available on record produced by the prosecution. The prosecution has mainly relied upon the school admission and discharge register where the date of birth of the prosecutrix is mentioned as08.07.2003. Prosecutrix (PW-1) has stated in her deposition that on the date of incident she was aged about 18 years and her date of birth is 08.07.2000. In cross-examination, she admits that on the date of incident she was aged about 19 years.
9. PW-2, mother of the prosecutrix Indu Kawasi (PW-3) brother of the prosecutrix and Paklu (PW-4), village Kotwar have not stated anything against the appellant and has turned hostile. Smt. Kawasi Sushila (PW-6) School teacher of Kanya Ashram Dubbatota has stated that in her deposition that the police has seized school admission and discharge register Ex.P-15 where the date of birth of the prosecutrix has been registered as 08.07.2003 (Ex.P-17). In cross- examination, she has admitted that the parents of the prosecutrrix were illiterate and she was not the author of the date of birth of the Neutral Citation 2024:CGHC:2575-DB 6 prosecutrix nor the school admission and discharge register. Dr. Manisha Pradhani (PW-5) has examined the prosecutrix and gave the medical report Ex.P-14. She opined that the hymen was found ruptured and it seems like recently she has given birth to a child and she referred the prosecutrix to Radiologist for age determination. Appellant was also medically examined by Dr. Mayank (PW-9) has medically examined the appellant vide Ex.P-35) and he opined that the appellant was capable of performing sexual intercourse. The blood samples of the new born child and the appellant were taken and sent for DNA analysis to the Forensic Science Laboratory, Raipur. Prosecutrix herself has stated that she was aged about 18 years on the date of incident. From perusal of the evidence of the mother, brother and sister of the prosecutrix, it appears that there is no any cogent and clinching evidence led by the prosecution to hold that on the date of incident, the prosecutrix was minor and below 18 years of age.
10. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 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 any material on the basis of which the age was recorded. The Hon'ble 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. Neutral Citation 2024:CGHC:2575-DB 7
11. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed 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. 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.-
42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:-
"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....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. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned Neutral Citation 2024:CGHC:2575-DB 8 therein could not be accepted."
43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:-
"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."
44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.
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 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 (2006) 5 SCC 584 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."
12. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Neutral Citation 2024:CGHC:2575-DB 9 Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under :
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on Neutral Citation 2024:CGHC:2575-DB 10 record and on appreciation of evidence adduced by the parties in each case.
33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.
33.8. If two views are possible on the same evidence, the courtshould lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.
33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.
33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
13. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under :
"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Neutral Citation 2024:CGHC:2575-DB 11 Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
14. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either
(i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also Neutral Citation 2024:CGHC:2575-DB 12 provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."
15. Now, reverting to the facts of the present case and after considering the evidence collected by the prosecution and in thelight of the aforesaid judgments of Hon'ble Supreme Court, we find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the victim was minor and less than 18 years of age on the date of incident, despite the fact that the trial court in the impugned judgment has held the prosecutrix minor. Accordingly, we set aside the findings given by the trial court that on Neutral Citation 2024:CGHC:2575-DB 13 the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence.
16. The prosecutrix has admitted in her statement under Section 164 of the Cr.P.C. that while construction of the Panchayat Bhawan in their village, they met each as the appellant was a mason and she was a labourer. During that period, they developed intimacy and he committed sexual intercourse with her and she got conceived. Thereafter gave birth to a child and when the appellant refused to marry her, she made a written report at the police station. In cross- examination, she has stated that she has denied the allegation that the appellant has committed sexual intercourse with her on the pretext of marriage. She has also stated that their parents were having the knowledge that the appellant and the prosecutrix were having physical relations and therefore a community meeting was convened and thereafter they got married.
17. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has committed any forceful sexual intercourse with her. She has also filed an affidavit to that effect that she does not want to take any action against the appellant and since they have got married and are having two children out of their wedlock, living happily. The physical relation between them continued upto the period when the prosecutrix became pregnant and gave birth to a child and the mother of the prosecutrix herself has stated that she was not having any objection about their relation.
18. Thus, considering the entire facts and circumstances of the case Neutral Citation 2024:CGHC:2575-DB 14 particularly the evidence with regard to the age and conduct of the prosecutrix, we are of the opinion that the prosecutrix was more than 18 years of age at the time of incident and she was a consenting party. Therefore, in the above facts and circumstances of the case, offence under Sections 363,366,376(3) IPC and Section 6 of the POCSO Act would not be made out against the appellant.
19. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 12.07.2023 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be in jail. He be released forthwith, if not required in any other case.
20. Keeping in view the provisions of Section 437-A CrPC, the appellant is 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 two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with 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 thereof shall appear before the Hon'ble Supreme Court.
21. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/- Sd/-
(Arvind Kumar Verma) (Ramesh Sinha)
Judge Chief Justice
suguna