Chattisgarh High Court
Prabhat Netam vs State Of Chhattisgarh on 20 October, 2023
1
CRA NO. 340/2020
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 340 of 2020
{Arising out of judgment dated 05/02/2020 passed by the learned Additional
Sessions Judge (FTC) & Special Judge (POCSO Act), North Bastar Kanker in
Special Case (POCSO Act) No. 39/2019}
Prabhat Netam S/o Devlal Netam, aged 28 years, R/o Village Saaanda,
presently at Khallari, Police Station Kanker, District North Bastar (C.G.)
---- Appellant
Versus
State Of Chhattisgarh Through Police Outpost Dudhawa, Police Station
Narharpur, District North Bastar Kanker, Chhattisgarh.,
---- Respondent
_______________________________________________________________
For Appellant : Mr. Sandeep Shrivastava, Advocate
For Respondent : Mr. Trivikram Nayak, PL
Hon'ble Shri Goutam Bhaduri, J
Hon'ble Shri Deepak Kumar Tiwari, J
Judgment on Board
Per Deepak Kumar Tiwari, J.
20/10/2023 Heard.
1. This criminal appeal is filed under Section 374 (2) of the Code of Criminal Procedure by the appellant against the impugned judgment of conviction and order of sentence dated 05/02/2020 passed in Special Case (POCSO Act) No. 39/2019 by the learned Additional Sessions Judge (FTC) & Special Judge (POCSO Act), North Bastar, Kanker (C.G.), whereby the appellant has been convicted and sentenced as under:-
2CRA NO. 340/2020
Sentence Conviction
U/s 363 of the IPC RI for 1 year and fine of Rs. 1000/-, in
default of payment to further undergo
RI for 3 months.
U/s 366 of the IPC RI for 6 years and fine of Rs. 2000/-,
in default of payment to further
undergo RI for 6 months.
U/s 376 (2) (N) of the IPC RI for 20 years and fine of Rs. 5000/-,
in default of payment to further
undergo RI for 1 year.
U/s 5 (L) read with Section 6 In the light of Section 42 of the of the POCSO Act. POCSO Act, no separate sentence has been awarded under these sections.
2. Case of the prosecution in brief is that on 18/08/2019, PW5- father of the prosecutrix has given an information at police station - Dudhawa that his daughter, Prosecutrix (PW2) who is aged about 17 years and 3 months, without informing to anyone, had gone somewhere at about 11:30 hours in the night of 16/08/2019. Based on such information, initially zero FIR was registered vide Ex.P/9 and offence under Section 363 of the IPC was registered. Regular FIR was registered on 19/08/2019 vide Ex.P/1. During investigation, the prosecutrix was recovered from the possession of the appellant vide Ex.P/2. She was medically examined vide Ex.P/3 by Dr. Piyusha Bhaskar (PW14). Underwear of the Prosecutrix was seized vide Ex.P/4. Statement of the prosecutrix was recorded under Section 164 of the Cr.P.C vide Ex.P/5. The appellant was also medically examined by Dr. Sunil Soni (PW8) 3 CRA NO. 340/2020 vide Ex.P/16. Subsequently, statement of witnesses were recorded. During investigation, it was revealed that the appellant forcibly committed rape with the minor prosecutrix, so, other offences were added. After completion of investigation, a charge sheet was filed against the appellant.
3. After committal of the case to the sessions Court, the charges were read over and explained to the appellant upon which he denied the same and abjured the guilt and claimed to be tried. In order to substantiate the allegations, the prosecution examined as many as 14 witnesses, exhibited 35 documents and birth certificate of prosecutrix (PW2) Article -A. No defence witness was examined by the appellant in his support, however, his statement under Section 313 of the Cr.P.C was recorded, wherein he has pleaded his innocence and pleaded false implication in the matter. After evaluating the evidence, the learned Additional Sessions Judge convicted and sentenced the appellant as supra. Hence, this appeal.
4. Learned counsel for the appellant would submit that on the date of the incident the prosecutrix was major and she was the consenting party in the alleged act. The prosecution has not collected any reliable and admissible evidence to show that the prosecutrix was minor on the date of the alleged incident. He would further submit that article-A, birth certificate, which is a registration of birth of the prosecutrix, has been 4 CRA NO. 340/2020 prepared after more than 14 years on 13/07/2016, wherein the date of birth has been mentioned as 18/05/2002. The prosecution has not adduced any satisfactory evidence as to why the said certificate has been issued belatedly. He would further submit that in the statement of the father of the prosecutrix, there are certain infirmities as he is not capable to demonstrate about the exact age of the children. However, father has admitted the fact that on the date of his deposition, his younger child was studying in 12th Standard and she was admitted in the school at the age of 06 years, which makes it clear that the age of the younger child was about 18 years on the date of recording his evidence, and it is the admission of father itself that the victim is 4 years older than the younger child, so, from the statement of the father itself, it is well established that on the date of incident, the prosecutrix had already attained the age of majority. Therefore, the learned trial Court has not appreciated the evidence in its proper perspective and the conviction is bad in law. He prays to allow the appeal.
5. Per Contra, learned counsel appearing for the State submits that the prosecution has successfully proved the age of the prosecutrix on the basis of birth certificate article -A, wherein the age of the prosecutrix has been recorded as 18/05/2002. He would further submit that the prosecutrix was missing from 16/08/2019 as such on the date of incident she was below 18 years of age. The appellant has sexually exploited the minor victim which is evident from the statement of the 5 CRA NO. 340/2020 victim. So, the trial Court has rightly appreciated the evidence, and the conviction and sentence is well merited, which does not call for any interference.
6. We have heard learned counsel for the parties and perused the entire records.
7. Prosecutrix (PW2) has categorically deposed that she came into contact with the appellant for the first time in the month of January, 2019 and they started chatting through mobile phone. In the month of February, 2019, the appellant proposed her and said he likes her, and in reply she also expressed that she also likes him. Thereafter, in the month of April, 2019 both personally saw each other. She further deposed that due to her health issue, she had gone to her elder father at Bhanupratapur and after returning from there, she and the appellant met at Kanker in the month of May, 2019. She further deposed that the appellant resided in a rented house at Kanker. He took her in the said house and committed sexual intercourse with her. Thereafter, the appellant took her on his motorcycle and dropped her at her village G........... She also deposed that in the month of August, 2019, the appellant again came to take her and said he will marry her, but she refused the same. She deposed that on the date of incident i.e. 16/08/2019, the appellant earlier called her on mobile and thereafter made her sit on his motorcycle and took her to the house of his friend, 6 CRA NO. 340/2020 where they stayed whole night and the appellant committed sexual intercourse with her. On the next morning, the appellant took her to his house at village K....., where both were residing along with the parents of the appellant and his sister. She deposed that during such stay, the appellant made physical relationship with her. Subsequently, the police came to the house of the appellant and brought her back.
8. PW5- father of the prosecutrix has deposed that on the date of incident, the prosecutrix, without informing to anyone, left the house in the night. On search being made, when she was not be found, they gave the information to the police station which has been recorded against unknown person as Ex.P/9 by Sonraj Suryavanshi (PW7).
9. Sub Inspector-Dehari Ram Jain (PW12) has deposed that he had recovered the prosecutrix from the possession of the appellant from his village-K........ vide Ex.P/2 on 19/08/2019. Subsequently, the appellant was arrested on 20/08/2019 vide arrest memo Ex.P/29.
10. PW5- father of the prosecutrix has also stated that her daughter was born on 18/05/2002. He had given the birth certificate article-A, which has been seized by the police vide Ex.P/11 wherein the date of birth of the prosecutrix has been recorded as 18/05/2002. The said birth certificate was issued on 30/07/2016 and the date of birth has also been registered on the same day. However, there are variations in the figures and words in the date of birth of the victim as in figures, the date of 7 CRA NO. 340/2020 birth has been recorded as 18/05/2002, whereas in words the date of birth has been mentioned as 18/04/2002. In the cross-examination at para 15, this witness admitted the fact that on the demand of school authority at the time of admission of the victim, he prepared the birth certificate. He further stated that he had written the date of birth of the victim with him on a plane paper.
11. Smt. Laleshwar Potai (PW9), hostel superintendent has deposed that the victim was admitted in school on 19/07/2008 and in the school admission register (Ex.P/20), her date of birth has been recorded as 18/05/2002, and on such basis, the school authority had issued birth certificate (Ex.P/21). This witness admitted in her cross-examination that normally at the time of admission, a declaration form is required to be obtained.
12. The prosecution, at the time of recording of the evidence, has neither produced any documents and nor exhibited any documents to prove the source of documents on the basis of which the date of birth of the victim has been recorded in the school.
13. PW5- father of the prosecutrix in his cross-examination at para 10 has stated that on the date of recording his deposition i.e. on 16/12/2019, his younger daughter was studying in 12th standard and the younger daughter was admitted in school at the age of 6 years. So, after the calculation of age about his children as informed by the father, his 8 CRA NO. 340/2020 younger daughter was approximately aged about 18 years in the 12 th standard and it is the categorical admission of father itself that the victim was 4 years elder than his younger daughter. So, on calculation of details given by the father, it is clear that on the date of incident, the prosecutrix has already crossed the age of majority. The prosecution which heavily relies on article-A, birth certificate of the prosecutrix, also contains material discrepancies as in figures and words, different month of birth has been recorded. Further registration of birth of the victim has also been made after more than 14 years as the same was recorded on 13/07/2016, so this documents becomes doubtful.
14. In the matter of Ravinder Singh Gorkhi vs. State of U.P.1, the Supreme Court has held in para 26 as under:-
15. "In Birad Mal Singhvi v. Anand Purohit2, this Court held:
16. "To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
1 (2006) 5 SCC 584 2 1988 Supp. SCC 604 9 CRA NO. 340/2020
17. In the light of the settled legal principles and the nature of evidence, if we examine the fact of the present case, we find that relevant reliable documents having evedentiary value on the basis of which, entries were made in the school admission register, were not found and proved. There are material discrepancies of age in the oral statement of the father of the victim. According to the statement of the father, it is apparent that she had attained the age of majority. Thus, the prosecution has failed to discharge the burden to prove the fact that on the date of incident, the prosecutrix was minor.
18. Moreover, from the statement of the prosecutrix, it is apparent that she was in love relation with the appellant and without informing to anyone in the family, she left her house in the night, accompanied the appellant and visited several places with the appellant on various occasions, thereby she had close intimacy with him. In such love relationship, she developed physical relationship with the appellant even on the date of her recovery when she was residing with the parents and sister of the appellant. It is only because the report made by the parents of the victim, such recovery was made, but the prosecutrix was not annoyed till such time and looking to the act of the appellant, it indicates that the prosecutrix was the consenting party in the alleged act.
19. For the foregoing discussion, we are of the view that the prosecution 10 CRA NO. 340/2020 has failed to discharge his burden to prove the charges leveled against the appellant, therefore, we are inclined to extend the benefit of doubt to the appellant.
20. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 05/02/2020 passed by the learned Additional Sessions Judge (FTC) & Special Judge (POCSO Act), North Bastar Kanker in Special Case (POCSO Act) No. 39/2019 are set-aside. The appellant is acquitted of the charges framed against him. He be released forthwith, if not required in any other case, on furnishing a personal bond for a sum of ₹10,000/- to the satisfaction of the trial Court. The bond shall remain in operation for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed.
21. Let a copy of this order along with record be sent back to the concerned Court for immediate compliance and release of the appellant.
Sd/- Sd/-
(Goutam Bhaduri) (Deepak Kumar Tiwari)
Judge Judge
Rahul