Allahabad High Court
State Of U.P. vs Monu @ Mohit Saini S/O Om Prakash on 24 August, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:170798-DB Court No. - 46 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 276 of 2023 Appellant :- State of U.P. Respondent :- Monu @ Mohit Saini S/O Om Prakash Counsel for Appellant :- Shiv Kumar Pal Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
(Ref: Criminal Misc. Delay Condonation Application)
1. Heard.
2. Delay in filing the present appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned.
3. Application stands allowed.
(Ref: Appeal)
1. This appeal is filed by the State alongwith an application for grant of leave to challenge the judgment and order of acquittal dated 30.08.2022, passed by the court below in Sessions Trial No.229 of 2021 (State of U.P. Vs. Monu @ Mohit Saini), arising out of Case Crime No.02 of 2021, under Sections 363, 366, 376 IPC, Sections 3/4 of the POCSO Act & Sections 3(2)(V), 3(2)(Va) S.C./S.T. Act, Police Station Kanth, District Moradabad.
2. As per the prosecution case, the informant gave a written report on 06.01.2021 at 12:49 p.m. stating therein that on the same day i.e. 06.01.2021 at about 4:00 in the morning, his daughter aged sixteen years has been enticed by the accused. On the basis of such report, Case Crime No.02 of 2021 was registered under Section 363 I.P.C., Police Station Kanth, District Moradabad and ultimately a charge-sheet was submitted against the accused under Sections 363, 366, 376 IPC r/w Sections 3/4 of the POCSO Act & Sections 3(2)(V), 3(2)(Va) S.C./S.T. Act. The trial court has formulated four issues in Para 13 of the judgment last of which is with regard to age of the victim. P.W.-1, who is the informant, has stated that the age of the victim was sixteen years. The basis of such deposition is the Aadhar Card of the victim, which he had got prepared. The school records have also been produced, as per which, the date of birth of victim was recorded as 10.07.2005 and in support of such contention, transfer certificate as well as scholar register is produced by the Head Master and the documents in that regard have been proved. The trial court has analyzed the evidence on the point of age and has observed that it was for the prosecution to prove that the victim is a minor. He has further observed that no evidence has been placed on record regarding the date of birth of victim or the basis for recording of date of birth in the school records.
3. The issue regarding determination of age of victim has been considered in a recent judgment of the Supreme Court decided on 18.07.2023, in Criminal Appeal No.1898 of 2023 (P. Yuvaprakash Vs. State Rep. by Inspector of Police). The Court examined the transfer certificate as well as the scholar certificate placed on record by the prosecution and hold that such material would not qualify to be admissible material for determination of age by virtue of Section 94 of the Juvenile Justices Act. Paragraph nos.14 to 19 of the aforesaid judgment is reproduced hereinafter:-
"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 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.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors.,3 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 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 & Ors4 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 v State of West Bengal5, 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.
18. Reverting to the facts of this case, the headmaster of M's School, CW- 1, was summoned by the court and produced a Transfer Certificate (Ex.C-1). This witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons [2012] 9 SCR 224 served by the court and deposed that 'M' had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07.1997. She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.e., the date of birth, Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years". In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."
4. The view taken by the trial court to disbelieve the transfer certificate is therefore in consonance with the law laid down by the Supreme Court in case of P. Yuvaprakash (supra) and, therefore, challenge made by the State to the finding of court below on the aspect of age cannot be accepted.
5. The victim is produced as P.W.-8 and she has turned hostile. The victim has stated that she was neither enticed by the accused nor was she subjected to sexual assault. She has also stated that she had joined the company of the accused voluntarily.
6. The trial court has also noticed the fact that victim was not medically examined by the prosecution and there is no independent material to show that the victim was subjected to sexual assault. In view of the fact that victim herself has denied such accusation, therefore, the court below has observed that there was no material to hold that the offence under Section 376 I.P.C. is proved against the accused. Ingredients of offences under the S.C./S.T. Act have also not been shown to exist in the facts of the case. It is for such reasons that the trial court upon evaluation of the evidence on record has acquitted the accused-opposite party.
7. We have been taken through the judgement of the court below by learned A.G.A. in order to demonstrate the illegality and perversity in the judgment and order of acquittal dated 30.08.2022, but no such perversity could be shown by the learned State counsel. The fact that victim was a minor and there is no independent material to show that the victim was subjected to sexual assault. The conclusions drawn by the court below are clearly borne out from the materials on record.
8. We have carefully examined the judgment of the court below and upon its examination, we find that the view taken by the court below is clearly a permissible view, in the facts of the case, and just because a different view could be taken would ordinarily not be a ground for this Court to interfere with the order of acquittal. In such circumstances, we find that neither any triable issue is raised before us in this appeal nor any perversity is shown, which may persuade this Court to grant leave to assail the judgment of acquittal. Prayer made by the State for grant of leave is, accordingly, refused and the appeal, consequently, fails and is dismissed.
Order Date :- 24.8.2023 Zafar