Chattisgarh High Court
Kamlesh Yadav vs State Of Chhattisgarh on 5 August, 2024
1
2024:CGHC:29020
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1376 of 2017
Kamlesh Yadav S/o Dularu Ram Yadav, Aged About 22 Years R/o Village Kanharpuri, P. S.
Dongergaon, District Rajnandgaon, Chhattisgarh., Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through The Police Station Dongergaon, District Rajnandgaon,
Chhattisgarh., Chhattisgarh
... Respondent
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For the Appellant : Mr. Uttam Pandey, Advocate.
For the State/Respondent : Mr. G. L. Uikey, Panel Lawyer.
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Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 05.08.2024
1. With the consent of the parties, the present matter is heard finally.
2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 22.12.2016, passed in Special Sessions Case No. 49/2015 by which the learned Additional Sessions Judge F.T.C., Rajnangaon (CG),whereby the appellant has been convicted and sentenced as follows:-
Convicted Sentenced to
under
Sections
363 of the IPC R.I. for 5 years with fine of Rs. 2000/- and, in
default of payment fine, additional S.I. for 3
2
months.
366 of the IPC R.I. for 5 years with fine of Rs. 2000/- and, in de
fault of payment fine, additional S.I. for 3 months. 376(2) of the R.I. fir 10 years with fine of Rs. 5000/-, in de- IPC fault of payment fine, additional S.I. for 6 months.
6 of the R.I. for 10 years with fine of Rs. 5000/- and, in POCSO default of payment fine, additional S.I. for 6 months.
3. The prosecution case, in brief, is that the minor victim aged about 15 years and 11 months was taken away by the appellant from her lawful guardianship on the pretext of marriage on 30.03.2015, when the prosecutrix was on the way of her sister's home, at about 7:00 am, the appellant met her near the shop of Mukesh Dewangan and enticed her to marry and brought her at Rajnandgaon and stayed there at the residence of his relatives. After one night halt at Rajnandgaon, the appellant brought her Surat (Gujarat) where they resided in tent and were doing labourer job in building construction work. Despite objection, physical relation was established by the appellant with the prosecutrix. Missing report was lodged by her father but police registered the offence under Section 363, 376 of IPC and Section 8 of POCSO Act under the Crime No. 81/15, against the unknown person. During the course of investigation, the prosecutrix was recovered from Ambika Township Dindali Surat (Gujarat) and the appellant, after trial stood convicted and sentenced as aforesaid.
4. Prosecution in order to prove its case examined total 12 witnesses. Statements of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, 3 pleaded innocence and false implication. However, no evidence was adduced by him in his defence.
5. After hearing counsel for the parties and appreciating evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described above of this judgment. Hence this appeal.
6. Learned counsel for appellant submits that the Trial Court has wrongly held the age of the prosecutrix as below 16 years only on the basis of the school admission record without any corroborating fact of date of birth, which is not authentic evidence to prove the date of birth. No authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. The date of birth mentioned as 20.04.1999 in Dhakhil Kharij Panji (Aricle-A) cannot be said to be conclusive as P.W.-05/Headmaster of the school, in his cross-examination admitted that the entry in Dakhil-Kharij register was not done by him. Also, he cannot tell on what basis the age of the victim was recorded in the register. Further, P.W.-02/father of prosecutrix has categorically admitted in his deposition that he does not know the date of birth of the prosecutrix. Further, no ossification test of the prosecutrix has been conducted to ascertain her age.
7. Learned counsel for the appellant further submits that the impugned judgment is per se illegal and contrary to the evidence available on record. There was love affair between appellant and prosecutrix, she went alongwith appellant of her own will and no alarm was raised by her while she roamed with appellant from one place to another.
8. Learned counsel further submits that trial Court convicted the appellant relying upon the statement of PW-3/victim, but her statement is not reliable 4 as there are many contradictions, omissions and development in her statement, which was not considered properly by the learned trial court. From the statements of the prosecutrix recorded before the police, Magistrate and the Court it reflects that she is not a reliable witness and appears to be a consenting party. Trial Court also ignored the fact that nothing has been found in the medical report of victim though there is allegation that appellant has established forceful physical relationship with her on many occasion. In fact, there was love affair between the appellant and the prosecutrix and therefore, she willingly went with him and had physical relation with him of her own free will. Medical evidence also shows that there was no sign of forcible sexual intercourse on the body of the prosecutrix. The prosecution has failed to prove its case beyond all reasonable doubt against the appellant and therefore, the appellant deserves to be acquitted of all the charges.
9. On the other hand, learned counsel for the State supporting the impugned judgment submits that the Trial Court has rightly appreciated and considered the documentary evidence (Article-A) with regard to proving the age of the prosecutrix and has given a clear finding that the prosecutrix was below 18 years of age at the time of incident,i.e., 03.03.2015. The MLC report (Ex. P/10 A) also confirmed commission of rape on the prosecutrix. The prosecutrix has categorically incriminate the present appellant in her statement and the appellant has failed to offer any explanation in this regard in his statement under Section 313 of Cr.P.C. It is well settled law that the statement of the prosecutrix, in inspired confidence to the judicial conscious of the Court, is alone sufficient to convict the accused who had committed the henious offence of rape and no further corroboration is required. He 5 further contended that the judgment of conviction and sentence recorded by the learned Trial Court is based on sufficient and reliable evidence tendered by the prosecution and there is no infirmity in the same. As such, even if there was affair between the appellant and the prosecutrix, the act committed by the appellant makes him liable for conviction under Sections 363, 366 & 376 (2) of IPC and Section 6 of POSCO. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed.
10. Heard learned counsel for the respective parties and perused the record placed on record.
11. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under :
"94. Presumption and determination of age.--
(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(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;6
(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:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
12. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has 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 XXXX 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 the opposite side.
733.5. 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 scrutinized 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 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 8 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."
13. 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 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 9 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 under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
14. In order to consider the age of prosecutrix, this Court has to 10 examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register (Ex. Article A), wherein date of birth of prosecutrix is mentioned as 20.04.1999 and on the date of incident, i.e., on 30.03.2015 age of the prosecutrix was 15 years 11 months, but the same has not been proved by the prosecution as the author of the Dakhil-Kharij Register has not been examined by the prosecution. Considering the statement of P.W.-03/prosecutrix, she has deposed in her cross-examination that she know the accused and they used to talk. There is no documentary evidence available on record, nor any Birth certificate has been produced. Even the ossification test of the prosecutrix has not been done. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. Also, PW-05, Headmaster of the School has denied that the entry was made by himself. Also, he could not tell who had made the entry in the said register. Thus, the School Admission and Discharge Register cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. There is no Ossification report produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. The father of prosecutrix (PW-2) has also unable to state the date of birth of the prosecutrix.
15. Also, prosecutrix (PW-3) has stated in her deposition that she know the accused and they used to talk. She also stated that she did not complain about the accused to anyone on the way from her village to Surat and from Surat to Dindoli. She also admitted that she stayed in Dindoli for a month and even there she did not complain against the accused to anyone. 11
16. From perusal of statements of prosecutrix (PW-3), her father (PW-2) as well as other prosecution witnesses and after considering the evidence collected by the prosecution, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix/victim was minor and less than 18 years of age on the date of incident, despite the fact that the Trial Court in the impugned judgment has held the prosecutrix as minor. Accordingly, this Court finds it appropriate to set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence.
17. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has committed any forceful sexual intercourse with her. Dr. Ragini Chandrakar (PW-11) in her deposition has stated that she did not found any external or internal injury on the body of the victim. The secondary sexual organs were fully developed.
18. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, this Court is of the opinion that the age of the prosecutrix is not verified and not proved by the prosecution that prosecutrix was minor at the time of incident and she was a consenting party and also it is a case of elopement. Therefore, in the above facts and circumstances of the case, offence under Section 363, 366, 376(2) of IPC and Section 6 of POCSO Act would not be made out against the appellant.
19. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 22.12.2016 is hereby set aside. Appellant stands acquitted 12 of all the charges levelled against him. The appellant is reported to be in jail. He be released forthwith, if not required in any other case.
20. Keeping in view the provisions of Section 437-A of CrPC, the appellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure of sum of Rs. 10,000/- with one reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court.
21. The Trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/-
(Arvind Kumar Verma) Judge Madhurima