Orissa High Court
Debabrata Sahoo @ Mithun vs State Of Odisha & Ors on 30 July, 2020
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
HIGH COURT OF ORISSA: CUTTACK
CRLA No. 71 OF 2020
(In the matter of an appeal under Section 14-A of the S.C. and S.T.
(P.A) Act)
DEBABRATA SAHOO @ MITHUN
@ DEBAPRASAD SAHOO ... ... ... Appellant
Versus
STATE OF ODISHA & ORS ... ... ... Respondent
For the Appellant: Mr. Satyabrata Pradhan,
Mr Adhiraj Mohanty, S.S. Dash, M.R.
Muduli, M.B. Smrutiranjan,
A.K. Samal, Advocate
For the Respondent: Mr. P.K. Mohanty,
Addl. Standing Counsel
For the Complainant: Mr. Soubhagya Swain, Advocate
PRESENT
THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI
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Date of Hearing - 2.07.2020 Date of judgment - 30.07.2020
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1. The instant appeal has been filed by the Petitioner under Section-14-A of S.C and S.C (P.A) Act assailing the order dated 10.12.2019 passed by the learned Addl. Session Judge-Cum- 2 Special Judge, Keonjhar in Special Case No-83/2019 corresponding to Nayakote P.S Case No-34 of 2019 rejecting the bail application of the Petitioner for commission of offences under Section-376(2)(n)/313/506 of Indian Penal Code, 1860 read with Section-6 of POCSO Act read with Section-3(2)(v)(va) of SC and ST (P.A) Act under which the accused-petitioner was forwarded to judicial custody.
2. Shorn of other details reflected in the impugned order dated 10.12.2019, the accused-petitioner has been implicated in this case for commission of offences under Section-376(2)(n)/313/506 of Indian Penal Code, 1860 read with Section-6 of POCSO Act read with Section-3(2)(v)(va) of SC and ST (P.A) Act on the allegation of committing forcible sexual intercourse with victim/ minor girl of 17 years who was the daughter of the informant. Further, it was alleged that, the victim was pregnant and petitioner caused miscarriage of the pregnancy of the minor victim by administering medicine. After lodging of the F.I.R on 5.10.2019 the petitioner was taken into custody on 27.11.2019.The accused subsequently filed an application seeking bail in which the victim also appeared and objected to the grant of bail on the ground that there is a possibility of harassment of the victim at the behest of the petitioner. The bail application of the petitioner was rejected by the court below vide its order dated 10.12.2019. The Addl. Session Judge-Cum- 3 Special Judge, Keonjhar taking into account the seized school admission register of the victim which shows the date of birth of the victim to be 17.03.2002 and the medical report of the victim revealing healed hymnal tears on the private part of the victim and also the statement of the victim under Section 161 of Criminal Procedure Code of India, 1973, it was observed that, since the investigation was in progress and a prima facia case was made out due to gravity of offences involved. There was a likelihood of absconding and influencing the prosecution witnesses.
3. Ld. Counsel for the Petitioner Shri Satyabrata Pradhan has made assorted submissions. He has submitted that in view of the case laws relied upon by him (which have been dealt hereunder) the Petitioner ought to be given the benefit of doubt. He placed releince on two documents with respect to the date of birth such as the Aadhar Card and the entry in the Anganwadi register which demonstrate that the victim was a major at the time of the commission of the alleged offences. The Ld. Counsel for the Petitioner has also relied on the provisions of the Juvenile Justice (Care and Protection of Children) Act,2000 and the rules framed thereunder. He also took this Court through the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. He further contended that the offence as alleged in the instant case are not made out as there was a pre-existing history of love 4 relationship between the parties. Lastly, he has submitted that since Aadhar Card as well as the Anganwadi Centre report both are prepared by public servants in the course of their official duty making them cogent and reliable proof of the age of the victim.
4. On the other hand, the contention of the Ld. Counsel for the State Shri P.K. Mohanty is that statement dated 7.10.2019 of the victim recorded under Section 164 of Code of Criminal Procedure, 1973 corroborates the medical examination report dated 16.10.2019 which showed healed hymnal tears on the private part of the victim. He further submits that the offence of rape is made out under the sixth category which provides that if a sexual act is committed even with the consent of a victim under 18 years of age, same constitutes the offence of rape. In the instant case FIR was lodged on 5.10.2019 in respect of an offence which was continuing/on- going from a period of one year. The same is quite apparent from the written report of the father of the victim and corroborated by the statement of the victim. The date of birth of the victim is 17.03.2002 as per the school admission register and also the Board Certificate seized by the police both the date of birth coincides to be below 18 years at the time of occurrence giving rise to the complaint. The Ld. Counsel also relied upon the procedure to be adopted under the Juvenile Justice (Care and Protection of Children) Act, 2015 5 and rules framed thereunder for determination of age of the victim in rape cases. He further contended that Rule-12(3) of Juvenile Justice Rule-2007 as well as Section -94 and Sub-section 2(i) of the Juvenile Justice Act, 2015 provide the procedure to be followed for determination of age.
5. Heard Ld. Counsel for the parties. The prosecution story as set out in the FIR is that the father of the victim lodged the FIR on 5.10.2019 stating that the petitioner had kept love relation with the daughter of informant. She was a student of intermediate college in Suakati College for more than one year and had caused her to get pregnant. It is also alleged that the petitioner promised to marry the daughter and kept a physical relationship with her. The informant stated that the victim discovered much to her horror that she had become pregnant. She informed the same to the Petitioner who then administered a pill causing abortion. After the same the petitioner had dumped the victim girl and absconded. On this allegation, investigation was taken up and finally on completion of investigation, charge sheet has been submitted. On being implicated in this case, petitioner was arrested and has been in custody since 27.11.2019.
6. The entire facts of the case are governed by multiple provisions of different legislations and the issue shall be dealt under those provisions distinctly at the time of trial. At present, the issue 6 hinges on the date of birth controversy. As per the school admission register which gets reflected in the matriculation certificate, date of birth of the victim is 17.3.2002. Date of lodgement of the FIR is 10.2.2019, thus, till the date of lodging of the FIR the age of the victim is 17 years, 6 months and 21 days. But as per Aadhar card which has not been seized by the police, but has been produced by the petitioner before this Court, the date of birth is shown to be 18.7.2001 which makes the age as on the date of incident 18 years 2 months 18 days. Date of birth as per Anganwadi Kendra Report is 10.1.2000 making the age on the date of the incident is 19 years 8 months and 25 days. The petitioner is in custody since 27.11.2019. In the mean time, the Victim has also filed an affidavit indicating the fact that both had love relationship and her age is more than 20 on the date of executing the affidavit. She further stated in the affidavit that due to some misunderstanding and miscommunication between them, her father had lodged the FIR against the petitioner but the said matter has been settled amicably. In view of these facts she did not want to proceed with the matter.
7. The statement of the victim dated 7.10.2019 under Section 164 of the Cr.P.C. reveals that the petitioner had established physical relationship with the victim perforce. Upon the victim getting pregnant, medicines were administered to her by the Petitioner to precipitate an abortion. Thereafter, the petitioner had fled 7 away from his house and the victim confided in her sister-in-law who then took her and left her at the house of the petitioner. The victim therefore was compelled to stay there for a couple of days during that time the petitioner had absconded from his own house. This version of the victim is supported by the other prosecution witnesses who testified on the same lines. It therefore reveals that at the time of establishing physical relationship the petitioner had no intention of marrying the victim and he used her for physical gratification. The victim was thereafter examined on 16.10.2019 wherein the opinion of the doctor is that there is no evidence of forced intercourse, suggesting that the act was consensual. As per the report of the doctor and the version of the victim, the medical termination of pregnancy seems to have been done on 25.9.2019. All the aforesaid indicate that there was close and intimate physical relationship between the petitioner and the victim. The same was allegedly done with the promise of marriage. This version however has surprisingly changed before this court when the victim has filed an affidavit dated 4.3.2020 stating that the instant case has been amicably settled and had originally been lodged due to some miscommunication. It is shocking that the victim has resiled from her version regarding the incident. Counsel for the victim has also brought on record an affidavit filed before the Executive Magistrate, Keonjhar dated 28.2.2020 8 bringing on record the said compromise. Since, in the instant case, the victim has completely flinched from her original version, the possibility of browbeating by the family cannot be ruled out. Thus, the evidence on record has to be looked at by reading between the lines. There is definitely more than meeting of the eye.
8. During the course of the hearing, the Ld. Counsel for the parties relied upon three documents i.e. Matriculation Certificate, Aadhar card and Report of Anganwadi Kendra, all of which provided for conflicting dates of birth. Apparently, there were conflicting dates, an exercise is required to be done by this Court to ascertain as to where there are conflicting dates of birth available on record then which of the documents would be more credence-worthy.
9. Since the central issue, at this stage, in the present case revolves around the question of determination of age of the victim based on divergent ages as indicated by three documents. Such a determination will naturally have a bearing on the culpability of the Petitioner herein in respect of the offences as outlined in the FIR. It is also noticed that such an issue, indicating conflicting date of birth recurringly comes up before this Court. It may not be out of place here to mention that the role of the State in such legislations at hand is like parens patriae. There seems to be a lot of divergence as to the age of a minor person or child which 9 spread across 11 legislations from 14 years of age to 25 years depending on the purpose of the legislation. However, in so far as the Juvenile Justice Act and the POCSO Act are concerned, the age of majority is fixed at above 18 years. Therefore, an exercise must be undertaken to bring a quietus to such an issue in light of some leading precedents of the Supreme Court of India.
10. In Brij Mohan Singh v. Priya Brat Narain Sinha1 the Hon'ble Supreme Court held that the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it in the discharge of his official duty, the probability of its being truly and correctly recorded is high. On the other hand, it was held that the same probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. In such case the evidentiary value of the document in question under Section 35 of the Evidence Act varies according to the maker thereof. In the case of Umesh Chandra v. State of Rajasthan2 it was held that oral evidence in respect of age has no value which could necessarily be proved only through documentary evidence. The court herein 1 (1965) 3 SCR 861 2 (1982) 2 SCC 202 10 disbelieved a horoscope and relied upon the records maintained by the school. In Dayachand v. Sahib Singh3 the Hon'ble Court held that although the tendency of many to have lesser age recorded in school is well known and can be easily appreciated but cannot be accepted as the same was clearly in conflict with the medical evidence. Thus, in the said case medical evidence which observes the physical developments especially with regard to the bone structure formation opine a certain age which trumped the records in the school register. In the case of Vishnu v. State of Maharashtra4 the Hon'ble Apex Court has chosen to believe the date of birth as indicated in the birth register maintained by the Municipal Corporation and disregarded the date of birth as recorded by the school register. The reasoning to do so has been that the best evidence with regard to the age of the child is that of the parents of the child. It has further held that credence-worthy documentary evidence will prevail over expert witness of a doctor and even ossification test. In the case of Birad Mal Singhvi v. Anand Purohit5 it was has held that the entries regarding the date of birth contained in the school's register or Secondary School Examination have no probative value and that a person such as the parents of the child who have special knowledge in terms of Section 35 of the Evidence 3 (1991) 2 SCC 379 4 (2006) 1 SCC 283 5 1988 Supp SCC 604 11 Act, with regard to the age of the child need to give evidence to that effect, in order to prove those documents which reflect the age. In the absence thereof such documents would be of no evidentiary value. In the case of Pradeep Kumar v. State of U.P.6 the court has relied upon the School certificate as well as the age indicated by medical examination as both of them were consistent and indicated the same age. In the case of Bhoop Ram v. State of U.P.7 the court disbelieved the medical opinion and instead chose to rely on the date of birth as occurring in the School certificate since the said document had not been disproved by any party and gave the accused the benefit of doubt. In the case of Bhola Bhagat v. State of Bihar8 the court held that since the object of such laws being socially oriented legislation and intended to be beneficial in nature. An obligation is cast on the court in such cases where a plea is raised with regard to the juvenility of the age of the accused to direct an enquiry to be held and seek a report in that regard. It further suggested that subordinate courts must be issued an administrative direction that whenever such a plea with regard to juvenility is raised. There being a doubt on the said question, it is incumbent upon the court to conduct an enquiry by giving the parties an opportunity to establish the respective claims in 6 1995 Supp (4) SCC 419 7 (1989) 3 SCC 1 8 (1997) 8 SCC 720 12 order to return a concrete finding with regard to the age. In Ramdeo Chauhan v. State of Assam9 it was held that in case the school register was not maintained by a public servant in discharge of his official duty, then such an entry would not have a binding evidentiary value. It also held that although medical opinion could not be said to be definitive but in cases where the court was grouping in the dark some amount of guidance could be sought from such an opinion and it could not be discarded altogether. In Ravinder Singh Gorkhi v. State of U.P.10 it was held that when a particular statute requires the age to be determined in a particular manner, no artificial division could be made between civil and criminal cases and a uniform standard of proof must be followed. The court must endeavor to strike a balance keeping in mind that a benevolent approach needs to be taken. In Babloo Pasi v. State of Jharkhand11 the court disbelieved the age reflecting in the voters list as no evidence was produced as to the materials based on which such an age had been entered into the said list. In Jitendra Ram v. State of Jharkhand12 dealing with the issue of juvenility under the Juvenile Justice Act it was held that in the absence of any concrete documentary evidence, it was incumbent upon the 9 (2001) 5 SCC 714 10 (2006) 5 SCC 584 11 (2008) 13 SCC 133 12 (2006) 9 SCC 428 13 court to follow the procedure prescribed under the statute and obtain a medical opinion with regard to the age. In Jyoti Prakash Rai v. State of Bihar13 the court held that since the School certificate and the horoscope were found to be forged, the court had no other option but to rely on the medical opinion. However, while doing so, the court observed that medical opinion could not be taken to be conclusive but a margin of two years on either side had to be taken and that a better approach would be to take the average of the medical opinion issued by different medical opinions. In Pawan v. State of Uttaranchal14 the court was disinclined to believe the school leaving certificate which had been obtained after the conviction. In Hari Ram v. State of Rajasthan15 the court took note of the various provisions of the Juvenile Justice Act and opined that in case of any ambiguity with regard to the age, Rule 12 framed under the Act had to be taken recourse to in order to arrive at the age. In Raju v. State of Haryana16 the court directed that the age determination be done as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed thereunder. In Shah Nawaz v. State of U.P.17 the court 13 (2008) 15 SCC 223 14 (2009) 15 SCC 259 15 (2009) 13 SCC 211 16 (2010) 3 SCC 235 17 (2011) 13 SCC 751 14 held that Rule 12 categorically provides that the medical opinion from the medical board should only be sought only when the matriculation certificate or school certificate or a certificate issued by a corporation are not available. That being the provision under the rules the court ought not to have overlooked the same especially when such a document was available on record and was credence worthy. In Om Prakash v. State of Rajasthan18 in an exception the Hon'ble Apex Court found the school certificate to be unreliable and went by the medical opinion as the same was based on scientific medical tests like ossification and radiological examination in order to determine the age of the juvenile. In Ashwani Kumar Saxena v. State of M.P.19 the court relied on the admission register of the school as clinching evidence. The reasoning that the parents would have given a wrong date of birth was taken to be a specious plea and disbelieved. It was also held that the issue of the juvenility could be raised at any point in time or at any stage of the proceedings. A similar view was taken in the case of Kulai Ibrahim v. State20
11. In Sunil v. State of Haryana21 in the absence of school leaving certificate and the basis on which the age was recorded in the 18 (2012) 5 SCC 201 19 (2012) 9 SCC 750 20 (2014) 12 SCC 332 21 (2010) 1 SCC 742 15 school register not having been produced the court went by the age as opined by the report of the dentist who had conducted the examination. In State of M.P. v. Munna22 the court held that the X-ray report of the ossification test could not be believed as the doctor who conducted the examination and opined on the age was never examined and also noticing that in the absence of any other documentary evidence the age was not successfully established by the prosecution.
12. In Jarnail Singh v. State of Haryana,23 the court for the first time took a view that although Rule 12 deals with a child in conflict with law but by using the judicial tool of reading is held that the same could be extended to determine the age of the victim also. It is a landmark decision in the sense that for the first time the court took note that although there was the legislation in place to determine the age of the accused there was a vacuum with regard to the mode of determination of the age of the victim. Thus by necessary judicial construction it has been held authoritative leave that the same rule, i.e., Rule 12, would be applicable to determine the age of the victim as well. In State of M.P. v. Anoop Singh24 the court held that minor discrepancies existing amongst two documents is irrelevant as long as the other evidences on record point in a certain direction. In 22 (2016) 1 SCC 696 23 (2013) 7 SCC 263 24 (2015) 7 SCC 773 16 Mahadeo v. State of Maharashtra25 the court relied on a series of documents which indicated that the age was in a certain range based on the documents which were on record and credence worthy
13. In Sri Ganesh v. State of T.N.26 the court held that in the face of relevant documentary evidence there could be no medical examination to a certain the age and any such direction passed by any court would be unwarranted. The court while taking such a view discouraged because from directing any medical examination if there was credence worthy documentary evidence on record given the scheme of the Juvenile Justice Act after its amendment. In Mukarrab v. State of U.P.27 the court observed that in the absence of a birth certificate issued by the authority concerned the determination of age becomes a very difficult task providing a lot of discretion to the judges to pick and choose evidence. It was held that if two views were possible, the court should lean in favour of taking a beneficial approach. It further summarized the issue stating that:
(i) That a claim of juvenility may be raised at any stage and even after the final disposal of the case. It does not matter whether such a claim has been raised before the courts below;
25 (2013) 14 SCC 637 26 (2017) 3 SCC 32 27 (2017) 2 SCC 210 17
(ii) For making a claim with regard to juvenility the claimant must produce a material which may prima facie satisfy the court that an enquiry into the question of age determination is necessary and the burden lies on the party claiming a certain age;
(iii) Although it is difficult to state as to what documents would be sufficient to raise a presumption of juvenility/age but the documents referred to in Rules 12 shall definitely be sufficient for the prima facie satisfaction of the Court about the age necessitating a further enquiry as contemplated under Rule 7. The credibility of documents like school leaving certificate or board certificate would depend on the facts and circumstances of each case.
Even documents like school leaving certificate, Mark sheet, medical report et cetera could be treated to be sufficient for directing an enquiry and verification of the age if such documents inspire the confidence of the court;
(iv) An affidavit of the claimant or the parents or siblings or any relative in support of age shall not be sufficient justifying an enquiry to determine the age in the absence of any other documents; and 18
(v) Whenever a plea of juvenility is raised the court should always be guided by the objective of the Juvenile Justice Act and be alive to the position that the beneficent provisions must not be defeated by a hyper-technical approach which would disentitle persons to get the benefit of the legislation. The presumption that parents tend to decrease the age of the child while making an entry in the school admission role needs to be discouraged and such a plea ought not to be given much value.
14. From a conjoint reading of the aforesaid the principles as laid down by the Hon'ble Supreme Court dealing with a myriad factual backdrop although no straightjacket formula can be laid down. However, some common a thread that flows through with regard to the issue of age determination can be summarized as follows:-
(a) Medical opinion based medical examination like observing the bone structure etc or tests like the ossification test or radiological examination can at best be stated to be indicative of the range of the age.
Such medical opinion leaves a margin of about 2 years on either side.
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(b) Reliance on medical opinion normally the last option that should be adopted by courts and only in the absence of any other documentary evidence.
(c) Credible documentary evidence will trump medical opinion
(d) The age determination of the accused as well as the victim can be done under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 in case of such an enquiry is directed by a competent court
(e) A reading of the aforesaid judgements indicates that by and large, the Hon'ble Supreme Court has been inclined to rely on the school certificate or matriculation certificate.
(f) Now, the procedure to arrive at the age in case of conflicting documents on record has be statutorily provided under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The said provision provides for a preferential regime where the school certificate or matriculation certificate has been accorded the highest preference. The same also creates a presumption as to the age by way of a deeming fiction.
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15. Reverting to the facts of the case and applying the principles as discussed hereinabove. This court is inclined to go by the school admission register/ matriculation certificate not only due to leaning of the Apex Court on this issue as discussed hereinabove but also due to the fact that same now raises a presumption in law, albeit rebuttable, by way of a deeming fiction in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Thus, the age of the victim is taken to be 17 years 6 months and 21 days at the time of the offence, thereby prima facie attracting provisions of the Prevention of Children from Sexual Offences Act, 2012 as well as the other offences adumbrated in the FIR. In so far as the strenuous reliance of the Ld. counsel for the petitioner in the case of G. Achyut Kumar v. State of Odisha28 is concerned the same will have no application in the facts of the case as there was no issue of minority of the complainant involved therein.
16. Considering the aforesaid discussion, submissions made and taking into account a holistic view of the facts and circumstances of the case at hand, this Court is not inclined to entertain the instant appeal. Accordingly, the present appeal u/s 14-A of the S.C. and S.T. (P.A) Act filed on behalf of the accused/appellant stands rejected.
28 2020 (1) OLR 979 21
17. It is, however, clarified that the observations made hereinabove shall not prejudice the appellant in any way and the Trial shall proceed uninfluenced by any of the prima facie observations. The Ld. Trial court may do well to apply the law as discussed hereinabove in the event the issue of age comes up before it and be guided by the aforesaid observations.
[S.K.PANIGRAHI,J.] Orissa High Court, Cuttack.
The 30h day of July, 2020/AKP.