Chattisgarh High Court
Bhuvan Verma vs State Of Chhattisgarh on 25 November, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
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2024:CGHC:45998-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 540 of 2020
Bhuvan Verma S/o Shri Bhanupratap Verma Aged About 28 Years R/o
Village Bhendervani, Police Station Saja, District Bemetara
Chhattisgarh.
... Appellant
versus
State Of Chhattisgarh Through Police Station Saja, District Bemetara
Chhattisgarh.
... Respondent
For Appellant : Mr. Uttam Pandey, Advocate.
For Respondent/State : Mr. Ankur Kashyap, Dy. Govt. Advocate.
Hon'ble Smt. Justice Rajani Dubey &
Hon'ble Shri Justice Bibhu Datta Guru, JJ
Judgment On Board
Per Rajani Dubey, J
25/11/2024 Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 28.02.2020 passed 2 / 14 by the Fast Track Special Court (POCSO Act, 2012), Bemetara in Special Case No.01/2019 whereby the appellant stands convicted and sentenced as under:
Conviction Sentence Under Section 376(2)(j)(n) of RI for 20 years, pay a fine of Indian Penal Code. Rs.2000/-, in default thereof to suffer additional RI for 03 years. Under Section 506 Part-II of RI for 03 years, pay a fine of Indian Penal Code. Rs.1000/-, in default thereof to suffer additional RI for 01 year.
Under Section 6 of Protection of RI for 20 years, pay a fine of Children from Sexual Offences Rs.2000/-, in default thereof to Act, 2012. suffer additional RI for 03 years.
All the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that on 19.9.2018 the prosecutrix, a minor girl, lodged an oral report at Police Station - Saja that from 19.9.2017 to 19.9.2018 the accused/appellant, who is resident of her village, on the pretext of marriage physically exploited her on number of occasions and when she conceived, he asked her to abort it and also threatened to kill her if she disclosed the incident to anyone. However, when the prosecutrix was carrying pregnancy of six months and she narrated the whole incident to her father, then he talked to the appellant and he (appellant) committed his murder, for which a separate offence under Crime No.260/2018 was registered against him in Police Station - Saja. Based on the said report, offence 3 / 14 under Sections 376, 506 of IPC and Sections 5/6 of Protection of Children from Sexual Offences Act, 2012 (in short "the Act of 2012") was registered against the appellant.
03. During investigation, the prosecutrix was got medically examined. The appellant was also subjected to medical examination. Spot maps were prepared, Dakhil-Kharij register of the school where the prosecutrix was studying, was seized, statements of the witnesses were recorded and statement of the prosecutrix under Section 164 of CrPC was also recorded. After completing usual investigation, charge sheet under Sections 376, 506 of IPC and Sections 5(l)/6 of the Act of 2012 was filed before the concerned jurisdictional Magistrate.
04. Learned trial Court framed charges under Sections 376(2)(j)(n), 506 Part-II of IPC and Section 5(l) read with Section 6 of the Act of 2012, to which the accused/appellant abjured his guilt and prayed for trial. In order to substantiate its case the prosecution examined 15 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, he did not examine any witness in defence.
05. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal.
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06. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. It has also failed to consider that there is no legally admissible evidence to prove that the prosecutrix was minor on the date of incident. PW-7 Arjun Ram Verma, Head Master, admits that entry in Ex.P/8 was not made by him and the author who made this entry in the Dakhil-Kharij register has not been examined. The school leaving certificate is a forged document in view of statement of the prosecutrix that she is not educated. Further, as per medical evidence of PW-12 Dr. Jyoti A. Jasathi it is also clear that she was not a minor and whatever transpired between the appellant and herself, she was a consenting party to the said act. This apart, the inordinate delay in lodging the FIR also goes to show that present is a case of consent. However, the learned trial Court did not consider the relevant aspects of the matter in its true perspective and wrongly held the appellant guilty merely on the basis of conjectures and surmises which is not sustainable. Therefore, the impugned judgment is liable to be set aside the appellant deserves to be acquitted of all the charges.
Reliance has been placed on the judgment of the Hon'ble Supreme Court in the matter of Deelip Singh Vs. State of Bihar, (2005) 1 SCC 88; Sunil Vs. State of Haryana, (2010) 1 SCC 742; KP Thimmappa Gowda Vs. State of Karnataka, (2011) 14 SCC 475; Kaini Rajan Vs. State of Kerala, (2013) 9 SCC 113; Maheshwar 5 / 14 Tigga Vs. State of Jharkhand, (2020) 10 SCC 108; and the judgment of this Court in the matter of Netram Sahu Vs. State of CG, 2012(4) CGLJ 168.
07. On the other hand, learned counsel for the State opposing the contention of the appellant submits that in view of the conduct of the appellant and the oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is liable to be dismissed.
Reliance is placed on the decisions in the matters of Vijayan Vs. State of Kerala, (2008) 14 SCC 763; Kaini Rajan Vs. State of Kerala, (2013) 9 SCC 113; and Parkash Chand Vs. State of Himachal Pradesh, (2019) 5 SCC 628.
08. Heard learned counsel for the parties and perused the material available on record.
09. It is clear from the record of learned trial Court that the appellant was charged under Sections 376(2)(j)(n), 506 Part-II of IPC and Section 5(l)/6 of the Act of 2012 and after appreciation of oral and documentary evidence, he was convicted under aforesaid sections by the impugned judgment.
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10. First of all, we proceed to examine the evidence to ascertain whether on the date of incident the prosecutrix was below 18 years of age or not?
11. Learned trial Court relying upon the entry regarding date of birth of the prosecutrix mentioned in the Dakhil-Kharij register as 3.12.2003 held that she was a minor on the date of incident. PW-7 Arjunram Verma, Headmaster of Primary School states that he produced Dakhil- Kharij register Ex.P/8 and its attested copy is Ex.P/8C wherein date of birth of the prosecutrix is recorded as 3.12.2003 and as per this register, she was admitted in Class 1 on 16.6.2010 and was issued transfer certificate on 1.5.2015 after passing Class 5. However, in cross-examination he admits that entry in Ex.P/8 was not made by him and it is not mentioned in Ex.P/8 as to on what basis the said entry regarding date of birth of the prosecutrix was made therein.
12. The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment 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 7 / 14 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.
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 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 8 / 14 under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
13. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:-
"14 This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth.
"14.... The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have 9 / 14 evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value."
15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case."
14. In the case in hand, though in the Dakhil-Kharij register (Ex.P/8) the age of the prosecutrix is recorded as 3.12.2003 but PW-7 Head Master in cross-examination has admitted that entry in Ex.P/8 was not made by him and it is not mentioned in Ex.P/8 as to on what basis the said entry regarding date of birth of the prosecutrix was made therein. Further, statements of the prosecutrix and her family members also do not disclose the date of birth of the prosecutrix. Thus, in light of aforesaid decisions of the Hon'ble Supreme Court, we find that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence we set aside the finding so recorded by the learned trial Court 10 / 14 and hold that the prosecution has not been able to prove successfully that on the date of incident she was minor.
15. Now we are to see whether the appellant had forcible sexual intercourse with the prosecutrix or it was a consensual act?
16. PW-1 prosecutrix states in her deposition that on the date of incident at about 2 pm she went towards canal to attend the call of nature and while returning from there, the appellant caught her and committed rape upon her on the pretext of marriage. However, she did not disclose the incident to anyone. After 2-3 days again the appellant committed rape upon her at the same place when she went to attend the call of nature. Likewise, the appellant committed rape on her at the same place about 3-4 times with an interval of 2-3 days as a result of which she conceived. She states that when she narrated the incident to her father, he told something to the appellant and two days thereafter her father was murdered. She was later informed by the villagers that accused Bhuvan and Ramcharan hanged her father after committing his murder.
In cross-examination she admits in para 11 that in 2016 she lodged a report against one Kushal Sahu S/o Peela Sahu for commission of rape upon her and the said matter is pending before the Court. She also admits that she got pregnant due to relation with Kushal Sahu and that this relation lasted for two years. In para 13 she admits that she wanted to marry the accused/appellant despite 11 / 14 knowing the fact that he is already married and a father of two children. In para 14 she admits that after getting pregnant twice from Kushal Sahu, he refused to marry her and thereafter she told the appellant that she is pregnant from him but he also refused and told that it would be due to her relation with Kushal Sahu.
17. PW-2 mother of the prosecutrix, PW-3 brother of the prosecutrix and PW-5 Khedu Ram Sahu supported the statement of the prosecutrix in examination-in-chief and state that the prosecutrix informed them about the incident of rape but they also admit the suggestion of the defence in cross-examination that she had relation with Kushal Sahu and got pregnant from him.
18. PW-4 Neelam Singh Chauhan, Village Kotwar, states that father of the prosecutrix Paretan died due to hanging in July, 2018 and after his death when the prosecutrix lodged report against the appellant, then he came to know that she was pregnant from the appellant. He admits his signature on the seizure memo Ex.P/7 pertaining to seizure of Dakhil-Kharij register.
19. PW-6 Sumant Verma also states that somebody murdered Paretan Sahu and hanged him. He heard in the village that the prosecutrix has illicit relation with the accused but he does not know anything about the incident of rape on her. In cross-examination he 12 / 14 admits that the prosecutrix was pregnant from Kushal and she lodged report against him.
20. The Hon'ble Supreme Court in the matter of Kaini Rajan (supra) held in paras 15 & 16 of its judgment as under:
"15. In Ramdas V. State of Maharashtra, (2007) 2 SCC 170 this Court held that : (SCC p. 179, para 23) "23.... the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity."
16. Vijayan Vs. State of Kerala, (2008) 14 SCC 763 was a case where the complaint was made by the prosecutrix after the alleged commission of rape on her by the accused. At the time of making the case, the prosecutrix was pregnant for about seven months. This Court did not place reliance on the sole testimony of the prosecutrix. The Court noticed that flaw that no DNA test was conducted to find out whether the child was born out of the said incident and the accused was responsible for the said child."
21. In light of the above decision, if we examine the facts and evidence of the present case, it is clear that the prosecutrix and her family members have admitted the suggestion that the prosecutrix was in relation with another person namely Kushal Sahu and out of that relationship she got pregnant twice and when he refused to marry her, she lodged a report against him. It is also admitted by them that the 13 / 14 said pregnancy from Kushal Sahu was got aborted by her father and Kushal Sahu, for which they were separately prosecuted on the report of the villagers. In this case also no DNA test has been conducted to ascertain the paternity of the child of the prosecutrix. The prosecutrix has herself admitted the suggestion that when Kushal Sahu refused to marry her, then she told the appellant that the child is from him but he too refused. Thus, in the given facts and circumstances of the case, looking to the nature and quality of evidence, admission of the prosecutrix and her family members coupled with conduct of the prosecutrix, we are of the opinion that the prosecution has failed to prove beyond reasonable doubt that it is the appellant who subjected her to forcible sexual intercourse repeatedly, rather it appears that the prosecutrix was a consenting party to the act committed by the appellant.
22. On the basis of aforesaid discussions, we are of the opinion that the prosecution has been unable to prove its case beyond reasonable doubt that it is the appellant who committed rape upon the minor prosecutrix or threatened her to death or any grievous hurt. Being so, the findings of guilt recorded by the learned trial Court are liable to be set aside and he deserves to be acquitted of all the charges.
23. In the result, the appeal is allowed. The impugned judgment is hereby set aside and consequently, the appellant is acquitted of the charges under Sections 376(2)(j)(n), 506 Part-II of IPC and Section 6 of 14 / 14 the Act of 2012. The appellant is reported to be on bail, therefore, his bail bonds shall remain in operation for a period of six months from today in view of provisions of Section 437A of CrPC.
The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.
Sd/ Sd/
(Rajani Dubey) (Bibhu Datta Guru)
Judge Judge
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan