Chattisgarh High Court
Navin Sahu vs State Of Chhattisgarh on 29 August, 2024
1
2024:CGHC:33180
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 516 of 2022
Smt. Vrindavati W/o Santosh Giri Goswami Aged About 50
Years R/o Village- Chakrda, Thana Ssraypali, Distt.
Mahasamund (C.G.)
---- Appellant
versus
State of Chhattisgarh Through- Police Station -Basna, Distt.
Mahasamund (C.G.)
---- Respondent
CRA No. 657 of 2022
Navin Sahu S/o Dhanu Ram Sahu, Aged About 45 Years R/o
Village Nanakpali Police Station Saraypali District Mahasamund
(Chhattisgarh).
----Appellant
Versus
State of Chhattisgarh Through Station House Officer, Basna,
District Mahasamund (Chhattisgarh).
---- Respondent
CRA No. 421 of 2022
Smt. Neelandri W/o Jaldhar Giri Goswami Aged About 35 Years
R/o Village Bansuladipa Police Station - Basna District -
Mahasamund (Chhattisgarh).
----Appellant
Versus
2
State of Chhattisgarh Through Police Station House Basna
District - Mahasamund (Chhattisgarh)
---- Respondent
----------------------------------------------------------------------------------------------
For Appellants : Mr. Sanjay Agrawal, Mr. Gajendra Kumar Sahu & Mr. Pragalbha Sharma, Advocates.
For State : Mr. Ajit Sing, GA & Ms. Pragya Pandey, Dy. GA.
---------------------------------------------------------------------------------------------
Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 29.08.2024
1. These criminal appeals have been preferred by the appellants against the judgment of conviction and order of sentence dated 11.02.2022, passed by learned Special Judge, (POCSO Act), Saraipali, District -Mahasmund, (CG) in Special Criminal Case (POCSO Act) No.23/2018, whereby appellants/accused (Smt. Vrindavati & Smt. Neelandri in CRA Nos. 516 & 421 of 2022) stand convicted and sentence as under:
Conviction Sentence Under Section 17 of Rigorous imprisonment for 10 years & fine of Rs.500/- in POCSO Act. default of payment of fine 02 months additional RI.
U/s 363/109 of IPC. RI for 05 years & fine of
Rs.500/- in default of
payment of fine 02 months
additional RI.
U/s 366/109 of IPC RI for 05 years & fine of
Rs.500/- in default of
payment of fine 02 months
additional RI.
However, appellant/accused Navin Shukla in CRA No.657 of 3 2022) stand convicted and sentence as under:
Conviction Sentence
U/s 363 of IPC Rigorous imprisonment for 05
years & fine of Rs.500/- in default
of payment of fine 02 months
additional RI.
U/s 366 of IPC RI for 05 years & fine of Rs.500/-
in default of payment of fine 02
months additional RI.
U/s 6 of POCSO Act Section 42 of POCSO Act
provides for alternate punishment,
hence, U/s 376 of IPC would be
inflicted.
U/s 376 of IPC RI for 10 years & fine of Rs.500/-
in default of payment of fine 02
months additional RI.
2. Prosecution case, in brief, is this that PW-5/mother of victim/prosecutrix lodged report to the concerned Police Station alleging that on 10.07.2018 appellants/accused abducted her minor daughter and, thereafter, appellant/Navin Sahu has committed forceful sexual intercourse with her at his house at village -Nanakpali. Based upon report, FIR was registered against the appellants and they were arrested.
3. On completion of investigation, final report/charge-sheet was filed against the appellants for the offence under Sections 363, 366, 376/34 of IPC and Sections 4 & 6 of POCSO Act.
4. Prosecution in order to prove its case examined total 15 witnesses. Statement of appellants (accused) were also recorded under Section 313 of CrPC in which they have denied 4 all incriminating evidence appearing against the, pleaded innocence and false implication. However, no evidence was adduced by them in their defence.
5. After hearing counsel for the parties and appreciating evidence available on record, trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal.
6. Learned counsels for the appellants submit that the impugned judgment is per se illegal and contrary to the evidence available on record. As per case of prosecution, on the date of alleged incident victim/prosecutrix was below 18 years of age, however, no authentic documentary proof was filed in order to show that she was a minor girl on that date. Date of birth of prosecutrix mentioned as 06.12.2002 in Dhakhil Kharij Panji (Ex.P-4/C) cannot be said to be conclusive as the author of the said document could not be examined. Further, PW-3/father of prosecutrix has categorically stated in his deposition that he does not know the DOB of prosecutrix and also failed to explain that on what basis said entry was made in Dakhil Kharij register. However, in his cross-examination, he admitted that prosecutrix was born on 04.04.2000, but but did not produce birth certificate/matriculation certificate or any other document regarding DOB of prosecutrix.
Learned counsels further submit that trial Court convicted the appellants relied upon the statement of victim/prosecutrix recorded recorded under Section 164 of Cr.PC on 17.07.2018, 5 however, her statement is not reliable as there are many contradictions and omissions in her statements, which was not considered properly by trial Court. From the statement of prosecutrix, it reflects that she is not a reliable witness and appears to be a consenting party to the act of appellant. However, due to untimely demise of prosecutrix on 18.08.2021, she could not testify before the trial Court and accused/appellants had no chance to cross-examine her, thus, conviction of appellants is based on the blatant violation of the principle of the natural justice. The Doctor, who examined the victim has not found any sign of forcible sexual intercourse on the body of the prosecutrix. Further, no ossification test of prosecutrix has been conducted to ascertain her age. The prosecution has failed to prove its case beyond all reasonable doubt against the appellants and, therefore, appellants deserves to be acquitted of all the charges.
7. On the other hand, learned counsel for the State supporting the impugned judgment and submits that prosecutrix/victim was minor girl on the date of alleged incident and this fact has been duly proved by the prosecution by adducing oral and documentary evidence. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed.
8. Heard learned counsel for the respective parties and perused the recorded placed on record.
6
9. Now this Court has to see whether the prosecution has been able to prove that on the date of incident prosecutrix was minor. PW-3/father & PW-5/stepmother of prosecutrix categorically stated in their deposition that they do not know the DOB of prosecutrix. However, PW-3 in his cross-examination has admitted that he informed the Kotwar of village Chakarda about birth of victim and based upon which DOB of victim was recorded as '04.04.2000 by the Kotwar.
The prosecution has heavily relied upon the entry made in Ex.P-4/C Dakhil-Kharij register of Govt Primary School, Chakardha, regarding date of birth of prosecutrix. Though in the said register, her date of birth is recorded as 06.12.2002, but PW-2/Headmaster of the said school has admitted in his cross- examination that he did not record name of prosecutrix in Dakhil- Kharij register and also failed to explain that on what basis DOB of prosecutrix has been made in Ex.P-4/C. He further stated that signature of the person, who admitted the prosecutrix in the school, not been mentioned in Dakhal Kharij register. Prosecution failed to produce birth certificate/matriculation certificate or any other document regarding DOB of prosecutrix. Further, no ossification test of prosecutrix has been conducted to ascertain her age.
10. 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 7 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.
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 8 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."
11. In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court 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 XXX 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 9 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 scrutinised 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 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 court should 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 10 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."
12. 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 11 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 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."
13. In the case of P. Yuvaprakash versus State Rep. By Inspector of Police, AIR 2023 SC 3525, the Hon'ble Supreme Court observed in para 13 as under:
12
"13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available;
and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of
(i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board".
14. In light of aforesaid decisions of the Hon'ble Supreme Court, this Court is of the view 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, this Court set aside the finding so recorded by the learned trial Court and hold that the prosecution has not been able to prove successfully 13 that on the date of incident she was minor.
15. Now coming to the point whether the appellants have abducted the prosecutrix and appellant/Navin Sahu has committed rape with her. Prosecutrix in her statement recorded under Section911 164 of Cr.PC on 17.07.2018 has stated that on the date of alleged incident when her parents had gone to village- Khatkhati to work on mixer machine and she was at home with her younger siblings, appellants/accused (Vrindavati & Neelandri) came her house and took her to Neelandri's house where appellant/Naveen Sahu was already present. Naveen Sahu told her to come with him, he will marry her and keep her as wife, however, when she refused to go with him. Accused (Vrindavati & Neelandri) forcibly sit her on motorcycle of Naveen Sahu, who took her to his home at Nanakpali, where he committed sexual intercourse with her on the pretext of marriage.
16. PW-5/stepmother of prosecutrix in her cross-examination has admitted that there was previous dispute between her husband (PW-3) and Narayan (son of accused/Vrindavati) and they also lodged report against Narayan and criminal proceedings is still pending before the concerned Court.
17. PW-9/Dr. Tara Agrawal, (medical officer) in her deposition stated that on 11.07.2018 she examined the victim and not found any injury on her body.
18. PW-12/Santoshi in her Court statement has stated that on the date of alleged incident, victim was fled away from the house, therefore, she given the food to her younger siblings. 14
19. It is an admitted position that after recording of statement under Section 164 of Cr.PC on 17.07.2018, prosecutrix was died on 18.08.2021 and could not examine before the trial Court, therefore, accused/appellants could not cross-examine her.
20. Any statement recorded by the Judicial Magistrate under Section 164 of the Cr.PC can be relied upon for the purpose of either corroborating the testimonies made by the witness as provided in Section 157 of the Indian Evidence Act, 1872 or contradicting a witness as provided in Section 155 of the said Act. It is pertinent to mention here that it is the statement of prosecutrix other than the confessional statement. In the instant case, prosecutrix has died before examination of the trial Court and there is no opportunity to cross-examine the prosecutrix by the defence. When statement recorded under Section 164 of Cr.PC other than the confessional statement that is not a substantive piece of evidence rather than it is corroborative piece of evidence.
21. As per established story of the prosecution, when father and other relatives/villagers were went to house of accused/Navin Sahu situated at village -Nanakpali for getting back the prosecutrix. Prosecutrix refused to came back with them.
22. In view of statements of prosecution witnesses, it is clear that on the date of alleged incident the prosecutrix had gone with accused/Navin Sahu with her own free will and stayed with her at his house. Further looking to conduct of prosecutrix, during the alleged incident and subsequent thereto coupled with evidence 15 of PW-9/Dr. Tara Agrawal, which also lends no support to the prosecution case, it is clear that the prosecutrix was a consenting party in this case to the act of the accused person.
23. Since this Court has already observed that the prosecution has failed to prove that on the date of incident she was minor, in the given set of facts and circumstances of the case, no offence of rape or abduction is made out against the appellants.
24. In the result, these appeals are allowed. Impugned judgment of conviction and order of sentence dated 11.02.2022 passed by learned Special Judge, (POCSO Act), Saraipali, District - Mahasmund, (CG) in Special Criminal Case (POCSO Act) No.23/2018, is hereby set aside. Appellants are acquitted from all the aforementioned offences/charges. They are reported to be in jail, therefore, they be set free forthwith if not required in any other case.
25. The appellants are directed to file personal bond with one surety in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973.
26. Record of trial Court alongwith copy of this judgment be sent back immediately to trial Court concerned for compliance and necessary action.
Sd/-
(Arvind Kumar Verma) JUDGE J/-