Patna High Court - Orders
Reyaz Ahmad @ Chunnu vs The State Of Bihar on 25 August, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1521 of 2017
Arising Out of PS.Case No. -41 Year- 2011 Thana -MADHEPUR District- MADHUBANI
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1. Reyaz Ahmad @ Chunnu Son of Md. Doud, Resident of Pachhi, P.S.-
Madhepur, District- Madhubani.
... .... Appellant/s
Versus
1. The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Dr. Rajesh Kumar Singh, Advocate
For the Respondent/s : Mr. Abhay Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
5 25-08-2017Sole appellant, Reyaz Ahmad @ Chunnu has been found guilty for an offence punishable under Section 376 IPC and sentenced to undergo RI for 4 years as well as to pay fine appertaining to Rs. 10,000/ in default thereof, to undergo RI for 6 months additionally, is under custody on account thereof, a prayer for bail has been made suspending the sentence till pendency of instant appeal in accordance with Section 389(1) CrPC.
2. Victim (PW5) shown herself to be aged about 17 years alleged that she along with appellant being co-villager known to each other and were on visiting terms and during said course, appellant had offered a proposal to marry and giving full assurance thereto, developed physical relationship as a result of which, she became pregnant. Just after coming to know about her status, she disclosed to the appellant and further requested to 2 marry which, the appellant/accused declined as well as an assault was also inflicted upon her.
3. Learned counsel for the appellant has submitted that the victim was at the verge of majority and so, would have been fully aware with the event of physical relationship and in likewise manner, the ultimate result, pregnancy. The narration of incident speaks a lot, that of consenting party, which she being major, was competent to endorse, hence no offence under Section 376 IPC is made out nor such kind of prospect did visualize.
Furthermore, it has also been submitted that evidence of doctor (PW 6) indicating age of victim to be 16-17 years carries variance of plus minus two years whereunder, the status of the victim happens to be major and being a consenting party, the judgment in its present form would not prevail. To substantiate such plea, learned counsel for the appellant also referred order dated 23.09.2010 passed in CrWJC No. 991/2010 which is based upon the case of Jaimala V. Home Secretary, Govt. of Jammu and Kashmir reported in AIR 1982 SC 1297.
4. Learned APP opposed the prayer and submitted that the female folk, residing at remote places being illiterate, simpleton, is always found subject to sexually exploitation by cunning lecherous fellow on one pretext or other and that being so, 3 the appellant does not deserve bail.
5. The mode of ascertainment of age of victim initially taken up by way of medical examination has been deprecated by the Hon'ble Apex Court and during course thereof, the earlier judgment passed by the Hon'ble Apex Court in Jaimala V. Home Secretary, Govt. of Jammu and Kashmir reported in AIR 1982 SC 1297 has also been taken note of in the case of Jernail Singh v. Haryana 2013 Cr.L.J. 3976 and have directed under para-20 that the age of victim should also be determined by exercising the same process whereunder the age of juvenile in conflict with law is determined. For better appreciation paragraph-
20 is quoted herein below:-
"20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under :
12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case 4 may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining .
(a) (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;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the 5 age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only 6 in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.
6. In the case of Mahadeo v. State of Maharashtra as reported in (2013) 14 SCC 637 wherein it has been held as follows:-
11. Though the learned counsel for the appellant attempted to find fault with the said conclusion by making reference to the evidence of PW 8, the doctor, who examined the prosecutrix and who in her evidence stated that on her examination she could state that the age of the prosecutrix could have been between 17 to 25 years, it will have to be held that the rejection of the said submission even by the trial court was perfectly in order and justified. The trial court has found that to rely upon the said version of PW 8, the doctor, scientific examination of the prosecutrix such as ossification test to ascertain the exact age should have been conducted which was not done in the present case, therefore, merely based on the opinion of PW 8, the age of the prosecutrix could not be acted upon.
12. We can also in this connection make 7 reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:
"12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the committee by seeking evidence by obtaining--
(a) (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;"
Under Rule 12 (3) (b), it is specifically provided that only in the absence of alternative methods described under Rules 12 (3) (a) (i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.
13. In the light of our above reasoning , in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20.05.1990, and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.05.1990. The reliance placed upon the said evidence by the courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good 8 grounds to interfere with the same.
7. In State of Madhya Pradesh v. Anoop Singh as reported in (2015) 7 SCC 773, the same principle has also been followed by the Hon'ble Apex court as held in the case of Mahadeo v. State of Maharashtra (supra).
8. Though that chapter is found reached at its finality, therefore, for the present purpose, it could be said that the evidence of victim is to be taken cared of as she had not been challenged over her status, being major as well as consenting party. Wherever there happens to be indulgence in physical relationship amongst two opposite sex being consensual then in that event, the intention of the party is to be taken note of along with status. If the appellant/accused had affirmation in his undertaking, then in that event, some sort of relaxation is found that too, when the female is properly identified as major.
Otherwise, when the offer is found soaked with deceitful activity exposing the intention of the accused that he was not at all inclined to marry rather projecting himself procured consent developed physical intimacy then in that event, certainly, he would be liable for rape. Consent on that very pretext would not be a valid consent, more particularly, when the victim happens to be 9 minor.
9. That being so, prayer for bail is rejected.
10. In case, appeal is not taken up for hearing within one year, then in that event, the appellant would be at liberty to renew his prayer for bail.
(Aditya Kumar Trivedi, J)
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