Allahabad High Court
Nazeer vs State Of U.P. on 16 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1330
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 22.05.2020 Delivered on 16.06.2020 Court No. - 28 Case :- Criminal Appeal No.- 1886 of 2017 Appellant :- Nazeer Respondent :- State of Uttar Pradesh Counsel for Appellant :- Anjali Dubey, Rajiv Mishra, Rehan Ahamad Siddiqui, Soniya Mishra Counsel for Respondent :- G.A. Hon'ble Virendra Kumar Srivastava,J.
1. This Criminal Appeal, under Section 383 of the Code of Criminal Procedure 1973 (hereinafter referred to as ''Code'), has been filed by the accused-appellant Nazeer (hereinafter referred to as ''appellant') through Jail Superintendent, Kheri, against the judgment and order dated 07.09.2017, passed by the Additional District and Sessions Judge, Court No.2, Lakhimpur-Kheri, in Criminal Case (Special Session Trial) No.04 of 2015 (State of U.P. vs. Nazeer), arising out of Case Crime No.993 of 2014 under Sections 363, 366, 376 IPC, Section 3 (2) (5) Prevention of SC/ST of Atrocities Act, 1989 (hereinafter referred to as 'SC/ST Act) and Section ¾ Prevention of Children From Sexual Offence Act, 2012 (hereinafter referred to as 'POCSO Act'), Police Station Nighasan, District Lakhimpur-Kheri, whereby the appellant has been convicted and sentenced for seven years rigorous imprisonment and fine of Rs.7000/- for offence under Section 363 IPC, for offence under section 366 IPC for ten years rigorous imprisonment with fine of Rs.10,000/- and for offence under Section 376 IPC read with ¾ POCSO Act ten years rigorous imprisonment with fine of Rs.15,000/- with further direction that all the sentences shall run concurrently and ¾ of total fine shall be payable to the victim. It has further been directed that appellant has to undergo four months rigorous imprisonment in default of payment of fine for offence under Section 363 IPC, five months rigorous imprisonment, in default of payment of fine for offence under Section 366 IPC and seven months rigorous imprisonment in default of payment of fine for offence under Section 376 IPC read with ¾ POCSO Act with further direction that period of detention already undergone in jail shall be set off in aforesaid sentences.
2. The prosecution case, in brief, is that the victim (P.W.-2), daughter of Sarju Prasad, (P.W.-1), resident of village Dakherwa Chauraha, Police Station Nighasan, District Lakhimpur Kheri, was student of Class Xth of Kanti Devi Intermediate College, Lakhimpur. On 03.12.2014 at about 9:00 a.m., she was going to her college to take six monthly examination. As she was on the way to her college, appellant Nazeer, who was working as servant in her house, along with two other person, kidnapped her on the point of knife. A written complaint dated 05.12.2014 (Ex.Ka-1) was lodged by Sarju Prasad (P.W.-1) at Police Station Nighasan at 14:40 p.m. on 06.12.2014 with further allegation that he had apprehension that her daughter would be raped and murdered. It was further stated in complaint (Ex.Ka-1) that the whole occurrence was within the knowledge of appellant's brothers Zibrail, Wazir, Bushir, Israil and Rafiq and Wazir and Zibrail had advised him (P.W.-1) not to initiate any criminal proceedings as his daughter would be handed over till 8:00 a.m. on 05.12.2014.
3. On the aforesaid complaint (Ex.Ka-1), chik report (Ex.Ka-5) was prepared, information was entered in General Diary (Ex.Ka-6), Case Crime No.993 of 2014 under Sections 363, 366 IPC and Section 3 (1) (10) SC/ST Act was registered against appellant Nazeer and two unknown persons and the investigation of the case was entrusted to Deputy Superintendent of Police (In short 'Dy.S.P.') Ram Asrey (not examined) who visited the place of occurrence and prepared sight plan (Ex.Ka 9).
4. During investigation, victim (P.W.-2) was recovered and appellant Nazeer was also arrested on 09.12.2014 at about 5:40 p.m. by Station House Officer (In short 'SHO') Ram Kumar Yadav (not examined) accompanied with Constable 285 Kamlesh Kumar, (not examined) lady Constable 758 Shama Parveen (not examined), in the presence of Sarju Prasad (P.W.-1) and his wife Smt. Anita Devi (victim's mother) (not examined) near Bus Station Paliya, Police Station Nighasan and recovery memo (Ex.Ka-10) was prepared by S.H.O. Ram Kumar Yadav and both the Victim (P.W.-2) and appellant Nazeer were sent for medical examination who were medically examined on same day. Victim (P.W.-2) was examined by Dr. Pushplata (P.W.-4) who after examination, prepared medico-legal examination report (Ex.Ka-3). She (P.W.-2) was referred to Radiological Department for X-ray of her right knee, wrist and elbow joint in order to find out her radiological age. The radiological examination of victim was conducted under supervision of Dr. V. K. Verma (P.W.-3) on 10.12.2014 and on the basis of X-ray plate (Material Ex.Ka-1) X-ray report (Ex.Ka-2) was prepared. In medical examination report (not proved by prosecution) appellant's age was noted as seventeen years and no injury was found either on his body or his genital organs.
5. Victim's (P.W.-2) vaginal smear and cervical smear was also sent to Pathology Department, District Hospital, Kheri, to find out the spermatozoa; but according to report of pathologist no spermatozoa was seen either dead or alive.
6. Meanwhile, on 15.12.2014, investigation was transferred to Dy.S.P. Mohd. Ibrahim (P.W.-6) who produced the victim before the Judicial Magistrate, Kheri on 17.12.2014, her statement under Section 164 of the Code was recorded and after recording of her statement under Section 164 of the Code, she was handed over to her father (P.W.-1) on 18.12.2014.
7. After investigation, charge sheet (Ex.Ka-8) under Sections 363, 366, 376 IPC, 3 (2) (5) SC/ST Act and ¾ POCSO Act, 2012 was filed against the appellant Nazeer before the trial Court who took cognizance of the case.
8. Learned counsel for both the parties were heard on the point of charges. Trial Court framed charges for offences under Sections 363, 366, 376 IPC, 3 (2) (5) SC/ST Act and ¾ POCSO Act, 2012 from which the appellant denied and claimed for trial.
9. Prosecution in order to prove its case, produced Sarju Prasad (P.W.-1), victim (P.W.-2), Dr. V.K. Verma (P.W.-3), Dr. Pushplata (P.W.-4), Head Constable Bhupendra Bahadur Singh (P.W.-5) and Mohd. Ibrahim (P.W.-6), wherein Sarju Prasad (P.W.-1) and Victim (P.W.-2) are witnesses of fact and rest are formal witnesses.
10. After conclusion of prosecution evidence, appellant was examined under Section 313 of the Code wherein he denied the prosecution story and statement of witnesses and stated that he has been falsely implicated due to previous enmity. The learned trial Court after due hearing to both the parties and considering the evidence and material available on record convicted and sentenced the appellant as above vide impugned judgment and order. Aggrieved by the said judgment and order, the appellant has preferred this appeal.
11. Heard Ms. Soniya Mishra and Shri Rajiv Mishra, learned counsels for the appellant and Shri Aniruddh Singh, learned AGA-I for the State through video conferencing and perused the record.
12. Learned counsel for the appellant has submitted that the appellant who was servant of Sarju Prasad (P.W.1) is innocent and has been falsely implicated due to a dispute arose regarding wages. Learned counsel further submitted that victim was aged about more than 18 years. She herself fell into love with the appellant and being consenting party she eloped with the appellant aged about 17 years. He further submitted that victim in her statement under Section 164 of the Code has not stated regarding any resistance made by her at the time of occurrence whereas her statement was recorded after 7-8 days of her recovery. Learned counsel further submitted that in medical examination neither any symptom of rape nor any injury was found on any part of victim's body. Learned counsel further submitted that the age of victim was not proved by the prosecution and neither any proof of birth certificate was filed nor any extract of Scholar Register was produced by the prosecution before the trial Court or authority/Principal issuing mark-sheet (age proof) as alleged by the prosecution whereas according to medico-legal examination, the victim at the time of examination was aged about 18 years who according to variation of age as in the light of well settled principle of medical science, may be up to 20 years. Learned counsel further submitted that investigation was not properly conducted and prosecution has suppressed the material evidence during trial. Learned counsel further submitted that prosecution has neither examined any independent witnesses nor the police witnesses who recovered the victim. Learned counsel further submitted that FIR was lodged after considerable delay without any explanation ; Suraj Prasad (P.W.-1) is not an eye witness of the occurrence whereas the statement of victim (P.W.-2) is self-contradictory, untrustworthy and not supported by medical evidence. Learned counsel further submitted that the trial Court has failed to consider and appreciate the evidence of prosecution in view of settled principle of law. The impugned judgment and order of the trial Court is illegal and unjustified which is liable to be set aside and appeal be allowed.
13. Per contra, learned AGA vehemently opposing the submission of learned counsel for the appellant has submitted that prosecution has succeeded to prove that the victim was below 16 years at the time of occurrence. Learned AGA further submitted that there is no material contradiction between medical and ocular evidence and since the victim's medico-legal examination was conducted after 24 hours, non-presence of injury or spermatozoa on private parts of the victim cannot be held as decisive factor for offence of rape. Learned AGA further submitted that sole testimony of victim is trustworthy and reliable and is sufficient for conviction of the appellant. Learned AGA further submitted that the judgment of trial Court is well discussed, well reasoned, it requires no interference and the appeal is liable to be dismissed.
14. I have considered the rival submissions of both the parties and perused the record.
15. Sarju Prasad (P.W.-1), informant supporting the prosecution story, has stated that at the time of occurrence at about 9:00 a.m. in the morning , his daughter (P.W.-2), aged about 16 years, student of Class Xth, was going to Kanti Devi Intermediate College, Lakhimpur Kheri to take her six monthly examination. As she did not return, he enquired to his relative brother-in-law, and to his each relative but could not succeed to know the whereabouts of her daughter. He further stated that during search of his daughter (P.W.-2), he learnt that appellant Nazeer, resident of village Lakhahee who used to visit his house, had also disappeared since the date of occurrence. He further stated that his wife was village Pradhan (head woman of village) at the time of occurrence and appellant Nazeer used to ride the motorcycle to carry his wife (victim's mother). He further stated that during search, Zibrail and Wazir, brothers of appellant, requested him not to proceed for criminal proceedings as they would produce his daughter by 8:00 a.m. on 05.12.2014 and when the whereabouts of his daughter was not traced out till 8:00 a.m. of 05.12.2014, he approached the police chauki (police out post) Dakhina to lodge the complaint. He further stated that he was advised by the police of concerned police out post of Dakhina to approach Police Station Nighasan for lodging the complaint, thereafter he rushed to Police Station Nighasan and lodged a written complaint (Ex.-Ka-1). He further stated that after four days from lodging the written complaint, he was informed that his daughter was recovered from Bus Station Paliya at Nighasan and upon that information he along with his wife rushed to Bus Station Paliya at Nighasan and found his daughter in presence of Constable, Lady Constable and Police Officer (Darogaji). Stating that after completion of recovery formality his daughter was sent for medical examination to District Hospital Kheri and she was handed over to him after 7-8 days by the police. He further stated that her daughter had told him that appellant had forcefully kidnapped her from road. During cross examination, this witness admitted that appellant was his servant for Rs.1500/-p.m. to carry out his wife who was village Pradhan at that time. He further admitted that on the day of occurrence when his daughter (victim) did not return till 6:00 p.m. he inquired her whereabouts from his wife, his real brother-in-law Banwari Lal and Dalla who failed to give any clue. Admitting further that his daughter was married after two years of the occurrence he further admitted that he had not seen the occurrence.
16. Victim (P.W.-2), sole eye witness of the prosecution, has stated that at the time of occurrence at about 8:30 a.m., she was going from her house to school to take six-monthly examination and as she reached near Malti Devi Temple, appellant who used to visit her house, met and commanded her on the point of knife to sit on his motorcycle and to go with him according to his command otherwise he would eliminate her. She further stated that due to fear she could not raise any alarm; appellant carried her on motorcycle to Paliya and thereafter from Paliya to Punjab by train. She further stated that as and when she tried to raise alarm or to complain anyone, appellant threatened her that if she would raise any alarm or complain anyone he would kill her brother. She further stated that appellant booked a room and stayed there in Punjab for 3-4 days and during that period he committed rape (bura kaam) against her will. She further stated that he had not sufficient money to stay there, he asked her to return home for money and as they reached Paliya Bus Station, police met and recovered her. She further stated that her father had also reached there and after some formality at bus station, she was sent to District Hospital for medical examination where she was medically examined and her X-ray was also conducted. She further stated that her statement under Section 164 Cr.P.C. was also recorded by the Judicial Magistrate, Kheri after 7-8 days of the medical examination and she was handed over to her parents. She further stated that, due to threat given by Station House Officer, Police Station Nighasan, she, in her statement under Section 164 of the Code, had stated that one Rajesh Verma was also involved with appellant in taking her away. In cross examination, she too admitted that appellant was a servant in her house who used to carry her mother by motorcycle. Stating that she was carried away by the appellant from Paliya to Punjab by train she further stated that she did not know whether appellant had traveled with her with ticket or without ticket. She further stated that she did not know when she reached at Punjab. In cross examination she also stated that she had not stated before the Magistrate in her statement under Section 164 of the Code that on the request of appellant Nazeer she had given her consent to follow him (main tayaar ho gayi) and if the said fact has been mentioned in her statement under Section 164 of the Code, she could not assign any reason for such statement.
17. She (victim) further stated that statement given by her before the Magistrate that Nighasan Police brought her and appellant from Punjab, was not given during her consciousness as the appellant had administered her some intoxicants, hence she was not in a position to tell anything in this regard. She further stated that she was accompanied by lady Police Constable Shama Parveen when Nighasan Police had brought her. She further stated that the appellant took her away from Malti Devi temple and neither any person acquainted with her nor any police personnel met her on the way. She again stated that she wanted to raise alarm but appellant was threatening her that if she would raise any alarm, he would kill her along with her brother. She also stated that she did not know whether or not she had taken any meal during journey from Paliya to Punjab and also she did not know what time would have been taken in the journey. In her cross examination, she further denied that she had given any statement to Investigating Officer that appellant Nazeer would have asked her to go to Punjab at any point of time prior to the occurrence and if such statement had been recorded by Investigating Officer, she could not assign any reason.
18. Dr. Pushplata (P.W.-4), lady doctor of District Hospital, Lakhimpur Kheri, has stated that on 09.12.2014, victim (P.W.-2), brought by Lady Constable 758 Shama Parveen, was medically examined by her. She further stated that at the time of medical examination, the victim was normal and was in full conscious; she (P.W.-2) was 158 cm in height, 59 kg in weight; her pubic and armpit black hair were present ; and her breasts were fully developed. She further stated that victim had already changed her clothes so many times and there was no mark of injury on her body. She further stated that in medical examination her hymen was torn, old and healed and no mark of injury was found either on the genital parts or any part of her body and no sign of bleeding through vaginal or discharge was found. She further stated that according to victim, the occurrence had taken place on 03.12.2014. This witness further stated that she had prepared vaginal smear and cervical smear and sent to pathology department for confirmation of spermatozoa and for determination of victim's age, she (P.W.-2) was referred for X-ray of right knee, right wrist and right elbow. She further stated that she had prepared medico-legal examination report (Ex.Ka-3) and also prepared supplementary medical report (Ex.Ka-4) on the basis of pathological report and X-ray report. She further stated that in pathological report, no live or dead spermatozoa was found and as per X-ray plate and report of radiologist, the age of victim was found to 18 years. Lastly, this witness stated that no definite opinion regarding rape could be given by her. In cross examination, she stated that the victim might be 18 years old and she (P.W.-4) further stated that victim's age might also be 16 years or 20 years.
19. Dr. V.K. Verma (P.W.-3), Radiologist, District Hospital, Lakhimpur Kheri stated that radiological examination (X-ray) of victim's (P.W.-2) right wrist, right knee and right elbow was conducted on 10.12.2014 in his supervision by X-ray technicians and on the basis of X-ray plates (Material Ex.-1) it was found that epiphysis of right wrist, right knee and right elbow of victim was fused with their corresponding bones. He further stated that on the basis of X-ray plate he had prepared a report (Ex.Ka-2).
20. Head Constable Bhupendra Bahadur Singh (P.W.-5) has stated that on 06.12.2014, he was posted as Constable Moharrir at Police Station Nighasan, District Lakhimpur Kheri and prepared chik report (Ex.Ka-5) on the basis of written complaint lodged by Sarju Prasad (P.W.-1) pertaining to Case Crime No.993 of 2014 under Sections 363, 366 IPC and under Section 3 (1) (10) SC/ST Act and the said information was entered in G.D. No.24 (Ex.Ka-6) by Head Constable Ram Lakhan Rawat.
21. Dy. S.P Mohd. Ibrahim, Investigating Officer (P.W.-6) has stated that on 15.12.2014, investigation of this case was handed over to him by Ex-Investigating Officer, Dy. S.P. Ram Asrey. He further stated that after perusal of medico-legal examination report of victim, he produced the victim followed by lady Constable before the Magistrate on 17.12.2014 for her statement under Section 164 of the Code and copied the same (statement of victim under section 164 of the Code) in Case Diary. He further stated that an application along with educational certificate for custody of victim was filed by her parents before the concerned Magistrate and in compliance of direction passed by the Magistrate, the victim was handed over to her parents on 18.12.2014, after preparation of handing over certificate (Ex.Ka-4). He further stated that he had copied affidavit dated 03.01.2015 filed by the victim in Case Diary and also recorded the supplementary statement of Sarju Prasad (P.W.-1) and statement of lady Constable Shama Parveen, who had recorded the statement of victim under Section 161 of the Code. He also stated that after investigation, he had filed charge sheet (Ex.Ka-8) against the appellant under Sections 363, 366, 376 IPC read with Section 3/4 POCSO Act and Section (2) (5) of SC/ST Act. During examination, he has further stated that site plan (Ex.Ka-9) was prepared by the then Investigating Officer, Dy.S.P., Ram Asrey and recovery memo of victim (Ex.Ka-10) was prepared by Sub-Inspector, Ram Kumar Yadav.
22. Appellant has been found guilty by the trial Court for offence of kidnapping and rape with victim below to 18 years old and has been convicted under Sections 363,366 and 376 IPC read with Section 3/4 POCSO Act 2012. Section 361 IPC defines offence of kidnapping, Section 375 IPC defines offence of rape and Section 3 POCSO Act defines penetrative sexual assault with child. Section 363 IPC deals punishment of kidnapping from lawful guardianship, Section 366 IPC deals with punishment for offence of kidnapping, abducting or inducing woman to compel her marriage, and Section 376 IPC read with Section 4 POCSO 2012 Act deals with punishment of offences of rape and penetrative sexual assault with child. Sections 361, 363, 366, 375 and 376 IPC (prior to Criminal Law Amendment Act 2018) and Section 3 and 4 POCSO Act 2012 are as under :
"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
363. Punishment for kidnapping.--Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
375. Rape.--A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.--With or without her consent, when she is under eighteen years of age.
Seventhly.--When she is unable to communicate consent.
Explanation 1.--For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.--A medical procedure or intervention shall not constitute rape.
Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
376. Punishment for rape (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
(2) .........
Section 3 and 4 POCSO Act 2012 Section 3. Penetrative sexual assault.
A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
Section 4. Punishment for penetrative sexual assault.
Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine."
23. Thus aforesaid provisions show that if sexual intercourse is committed by any person with any woman who is under eighteen years of age even with her consent, the prosecution has to prove only the sexual intercourse and such intercourse shall be treated as rape and if such woman is above eighteen years of age, the prosecution has to prove that such sexual intercourse was committed without free consent or will of that woman as required in section 375 IPC. Trial Court has convicted the appellant as he had kidnapped the victim who was under eighteen years of age. Thus in this case prosecution has to prove beyond reasonable doubt, firstly whether sexual intercourse was committed with victim and secondly whether victim was under eighteen years of age at the time of offence.
24. Neither Code nor IPC or POCSO Act 2012 provides procedure for determination of victim's age. Alleged offence was committed on 03.12.2014. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the '2007 Rules') framed under Section 67 of the Juvenile Justice (Care and Protection of Children) Act 2000 provides procedure for determination of juvenile's age. This provision is 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 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 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 of 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.
25. Supreme Court in Jarnail Singh v. State of Haryana (2013) 7 SCC 263, deciding the issue of procedure for determination of age of victim of rape, was of the view that the procedure for determination of juvenile's age as provided in Rule 12 (supra) may be adopted for determination of victim's age. The Supreme Court in Jarnail Singh (supra) has held as under :
"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 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." (Emphasis supplied)
26. In Rajak Mohammad v. State of Himachal Pradesh 2018 (3) SCC (Cri.) 753 three judges bench of Supreme Court in case where school certificate regarding age of prosecutrix was found unreliable, considering the medical evidence regarding her age has held as under;
"6. On the other hand, we have on record the evidence of Dr. Neelam Gupta (P.W.8) a Radiologist working in the Civil Hospital, Nalagarh who had given an opinion that the age of the prosecutrix was between 17 to 18 years.
7. While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused." (emphasis supplied)
27. Thus it is clear that for the determination of age of victim, primacy shall be given to Date of Birth (hereinafter referred to as 'DoB') mention in matriculation (or equivalent) certificate, in absence thereof DoB mention in the school first attended by the victim shall be taken into consideration, in absence of both, the entries made by a corporation or a municipal authority or a panchayat regarding DoB shall be taken into account and finally if none of the aforesaid document containing DoB is available, medical evidence regarding age of victim, shall be taken into consideration. It is further clear that neither merely ocular evidence nor any other document will be considered for determination of age.
28. In this case the trial Court has held that prosecution had succeeded to prove that victim, at the time of occurrence, was under the age of eighteen years and for determining her age, trial Court while discarding medical evidence produced by the prosecution, has relied on the ocular testimony of Sarju Prasad (P.W.-1) and of victim (P.W.-2) who had stated that victim's age, at the time of occurrence was about to sixteen years and also relied on the educational document (photocopy of Mark sheet, issued by Principal, Junior High School), collected by Investigating Officer, wherein victim's date of birth was mention as 16.10.1999. This document is photo copy of class eighth mark sheet of victim; it is neither a matriculation (or equivalent) certificate nor certificate issued by the school first attended by the victim. In the bottom of this photocopy mark sheet a separate note dated 08.12.2014 has been endorsed by the Pradhanadhypak (principal) Gayatri Devi Junior High School Lakhan Purva, Lakhimpur Kheri that DoB of victim is 16.10.1999. Neither Sarju Prasad (P.W.-1) nor victim (P.W.-2) have stated that victim (P.W.-2) was student Gayatri Devi Junior High School Lakhan Purva, Lakhimpur Kheri at any point of time. Prosecution has neither produced the extract of scholar register showing the the relevant entries of DoB nor produced the Principal of that Junior High School to prove the DoB of victim. Thus document produced by the prosecution is neither proved nor relevant to prove the DoB of the victim. In addition to above victim was recovered on 09.12.2014 but this document which was produced by the P.W.-1 before the concerned Magistrate on 18.12.2014, as stated by Mohd. Ibrahim (P.W.-6), was issued by concerned Pradhanadhyapak on 08.12.2014 i.e. one day prior to alleged recovery of victim. Preparation of this document one day prior to the recovery further creates doubts in prosecution story.
29. It is also pertinent to note at this juncture that according to prosecution, as stated by P.W.-1 and P.W.-2, victim was student of class Xth (Matriculation) of Kanti Devi Inter College, Lakhan Purva, Lakhimpur Kheri at the time of occurrence and she was going to her college to take six monthly examination on 03.12.2014; which means that victim would have appeared in High School (Matric) examination in 2014-2015. Both these witnesses were examined before trial Court in 2017. Neither Matriculation (High School) certificate of the victim was produced by the prosecution nor any explanation was given by the prosecution for its non production. It was also not stated by the prosecution that whether or not, after this occurrence, victim appeared in High School examination. In addition to above prosecution has also failed to produce relevant extract of birth and death register, maintain in the village panchayat Dakherwa Chauraha (victim's village panchayat), to show the DoB of victim whereas victim's mother was Pradhan (Headman) of the victim's village panchayat. Thus the prosecution has failed to produce a document, as required by 2007 Rules (supra) and also in view of law laid down by Supreme Court in Jarnail Singh (supra) and Rajak Mohammad (supra) to prove the DoB of victim.
30. So for as the consideration of medical opinion regarding the age of victim at the time of occurrence is concerned, in view of law laid down by the Supreme Court in Jarnail Singh (supra) if the prosecution fails to prove her age by a document as required in sub rule (i), (ii) and (iii) of aforesaid Rule 12, medical evidence shall be relied upon as last option to determine her age. According to Dr. Pushplata (P.W.-4) victims' age, at the time of examination, was 18 years. It is also pertinent to note that opinion regarding age of any person, based on medical and radiological evidence can not be treated accurate and exact. Such determination of age by doctor may vary in view of race, gender, geographical area, nutritional status and other factors like colour of pubic and armpit hair, development of breast and other changes in the body of the victim. Such variation may be of one or two year of either side.
31. Supreme Court in Jaya Mala v. Home Secretary J & K and Ors. AIR 1982 SC 1297 has held as under:
"However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
32. Dr. Pushplata (P.W.-4) has also admitted that victim's age may be 16 or 20 years. To arrive on this conclusion Pw4 considered the facts that victim was 158 cm in height and 59 kg in weight; her pubic and armpit black hair were present ; her breasts were fully developed ; and all the epiphysis of victim's right knee, right wrist and right elbow were fused. Prosecution has relied on the evidence of Dr. V.K.Verma (P.W.-3) and Dr. Pushplalta (P.W.-4) and various documentary evidence i.e. radiological report,(Ex.2), medico-legal examination report (Ex.3) and supplementary medico-legal report (Ex.4). In view of the aforesaid discussion, I am of the considered view that victim's age at the time of the occurrence was more than eighteen years and the finding of trial court that victim was below than eighteen years is not in accordance with law laid down by the Supreme Court in Jarnail Singh (supra) Razak Mohammad (supra) and Jaya Mala (supra).
33. It is settled principle of law in rape case only on the account of minor contradictions in prosecution evidence, delay in FIR, non examination of independent witnesses and delay in medical examination of victim, prosecution case can not be thrown out and prosecution can succeed only on the testimony of victim, if her statement is unblemished and reliable. P.W.-1 has admitted that he has not seen the occurrence. He has also admitted that upon information given by police that victim was recovered, he with his wife found victim with a Constable, one lady constable and Darogaji at Bus Station. Thus this witness is neither witness of occurrence nor of recovery of the victim. Prosecution has also neither produced any police personnel who recovered the victim nor the investigating officer who visited the place of occurrence just after the occurrence and prepared the site plan (Ex.9).
34. Victim's has been found as eighteen years or above. According to Dr. Pushplata (P.W.-4) neither any mark of injury was found on the body nor on the genital part of the victim. According to this witness (P.W.-4) hymen of the victim was old torn and healed and no opinion regarding rape could be given. Thus prosecution case is not supported by the medical evidence rather it is based only on the ocular testimony of victim.
35. Supreme Court in Santosh Prasad @ Santosh Kumar v. State of Bihar AIR 2020 SC 985 while allowing the appeal against conviction in a case based on the solitary evidence of prosecutrix, expressing its opinion regarding nature and quality of solitary evidence of victim has held as under :
"5.2. From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 - prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh - Medical Officer and PW7 - Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 - Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross-examination, she has stated that there was no physical or pathological evidence of rape.
5.3. As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.
5.4. Before considering the evidence of the prosecutrix, the decisions of this Court in the cases of Raju (AIR 2009 SC 858) (supra) and Rai Sandeep @ Deepu, (AIR 2012 SC 3157) relied upon by he learned Advocate appearing on behalf of the appellant-accused, are required to be referred to and considered.
5.4.1. In the case of Raju (AIR 2009 SC 858, Para 9) (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:
"11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] : (AIR 1996 SC 1393) to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is s extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
5.4.2. In the case of Rai Sandeep alias Deepu (AIR 2012 SC 3157, Para 15) (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
5.4.3. In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130 : (AIR 2011 SC 2877), it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality."
36. In view of the aforesaid law laid down by the Apex Court, it has to be seen whether the evidence of the victim (P.W.-2) is unblemished, reliable, trustworthy and of sterling quality to such extent to convict the appellant only on her statement. According to victim, she was kidnapped by the appellant on the point of knife, when she was going to her school and was passing nearby the Malti Devi Temple and was taken away by the appellant by motorcycle but neither any motorcycle nor knife was recovered by the police during investigation. Further, the victim was recovered on 9.12.2014 and nothing was recovered from her possession; she had not stated that at the time of occurrence, she was carrying any extra dress or cloths with her; she had also not stated that any dress was purchased for her between 03.12.2014 to 9.12.214; she was produced before Dr. Pushplata (P.W.-4) for medical examination on 09.12.2014 and this witness (P.W.-4) has stated that the victim had changed her dress so many times. It means that either victim had carried some extra dress with her or it was purchased for her during aforesaid period. Further, she (P.W.-2) stated that she was carried by appellant from Paliya to Punjab but she expressed her ignorance whether they had traveled with ticket or without ticket and she further stated that she did not know whether she had taken any meal during journey or not. She further admitted that her statement was recorded before Magistrate after 7-8 days of her recovery. Stating that she had not stated before the Magistrate that as the appellant asked her to go with him she had become ready and if such statement was recorded by Investigating Officer she could not assign any reason in this regard, she further stated that statement given by her before Magistrate that she and appellant Nazeer were arrested and brought by Nighasan police from Punjab, was not given by her during consciousness because at the time of statement before the Magistrate she was under influence of intoxication administered by the appellant. Prosecution has not proved or produced the statement of victim recorded by the Magistrate under Section 164 of the Code. Dr. Pushplata (P.W.-4) has clearly stated that victim was fully conscious at the time of her medical examination. Thus statement of victim that she was under influence of intoxication, at the time of her statement,recorded after 7-8 days of her recovery, makes her statement unreliable. In addition to above she has further admitted that Darogaji (SHO) of Nighasan Police Station, had threaten her to implicate one Rajesh Verma as an accused in her statement. Thus victim's admission that her statement under Section 161 of the Code was recorded under threat has further made the prosecution story unreliable, especially when the prosecution has failed to produce SHO of Nighasan Police Station, who recovered the victim and Dy. S.P. Ram Asrey, who was investigating the case at the time of recovery of the victim.
37. Further as discussed above that victim was recovered on 09.12.2014, but her mark-sheet, to prove her date of birth got prepared on 08.12.2014 and prosecution has neither examined the Investigating Officer Sri Ram Asrey nor any member of police team who recovered the victim who could be cross-examined by the defence counsel as to when and from where the victim was recovered. Further, the prosecution has also failed to explain that if written complaint (Ex.1), prepared on 05.12.2014 and filed at concerned police station on that day, why the FIR was not registered on that day and it was registered on 06.12.2014 at 14.40 p.m. Further P.W.-1 is not an eyewitness but in FIR it was mentioned by him that victim was kidnapped by appellant and two unknown person. P.W.-2 had not stated the presence of any person other than the appellant. She has also stated that no person, known to her had met on the way. Further it is not the case of prosecution that any person had witnessed the occurrence and told P.W.-1 as to who and how many person had kidnapped the victim. P.W.-2 has also not stated the involvement any person other than the appellant. In view of these defect and contradictions in the FIR, the prosecution case further has become doubtful.
38. Thus in the light of above discussion, it is clear that statement of sole eyewitness, victim (P.W.-2), is contradictory and not reliable, she was more than eighteen years at the time of occurrence, prosecution case is not supported by the medical evidence, FIR was lodged by P.W.-1 not only by delay of more than three days but its contents are contradictory to the prosecution story, prosecution has suppressed the important evidence and also withheld important witnesses. Trial Court has not properly discussed the prosecution evidence. Prosecution has miserably failed to prove its case beyond reasonable doubt that appellant had kidnapped and raped the victim. Appellant is entitled to be acquitted.
39. I am, therefore, unable to uphold the conviction and sentence of the appellant. Impugned judgment and order passed by the Trial Court is accordingly set aside. The appellant Nazeer is acquitted. Consequently appeal is allowed.
40. He is in jail. He is directed to be released forthwith unless wanted in any other case.
41. Keeping in view the provision of Section 437-A of the Code, appellant is hereby directed forthwith to furnish a personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before the trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellant on receipt of notice thereof, shall appear before Hon'ble Supreme Court.
42. A copy of this judgment along with lower court record be sent to Trial Court by FAX for immediate compliance.
Order date:-16.06.2020 P.s.