Shri Amit Kumar Gupta vs . State Of Meghalaya & Ors. on 8 December, 2021

[Cites 40, Cited by 0]

Meghalaya High Court

Shri Amit Kumar Gupta vs . State Of Meghalaya & Ors. on 8 December, 2021

Bench: H.S. Thangkhiew, W. Diengdoh

     Serial No. 01
     Regular List

                         HIGH COURT OF MEGHALAYA
                             AT SHILLONG
Crl.A No. 1 of 2021
                                                Date of Decision: 08.12.2021
Shri Amit Kumar Gupta             Vs.         State of Meghalaya & Ors.
Coram:
                 Hon'ble Mr. Justice H.S. Thangkhiew, Judge
                 Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   : Mr. R. Gurung, Adv.
For the Respondent(s)             : Mr. K. Khan, Sr. PP. with

Mr. A.H. Kharwanlang, GA.

i)       Whether approved for reporting in                 Yes/No
         Law journals etc.:

ii)      Whether approved for publication
         in press:                                         Yes/No



                          JUDGMENT AND ORDER

Per W. Diengdoh, (J):

1. On 31.05.2013 one Shri Subhash Bhattacharjee lodged an FIR before the Police Station Umiam (Barapani) to the effect that his 15(fifteen) year old daughter was missing at about 5:30 PM from Rongmen and that he strongly suspected that she was kidnapped by Mr. Amit Kumar Gupta (the accused/appellant herein). Accordingly, Umiam P.S. Case No. 40(06) of 2013 under Sections 363/376 read with Section 4 of the POCSO Act, 2012 was registered and investigation launched.

2. However, on 01.06.2013 at about 10:30 AM the Complainant along with his relatives appeared at the Police Station, including his said daughter and the said Amit Kumar Gupta and has narrated that he along with his son- in-law Shri Kanak Bhattacharjee caught the couple at the VIP Airport road, Guwahati, Assam inside a vehicle No ML05-B-9466 while they were on the way to the Railway Station. The police then arrested Amit Kumar Gupta and forwarded him to judicial custody after all the required formalities were completed.

3. In due course, the investigation was completed and the I/O forwarded the Charge Sheet to the Court as required under Section 173 Cr.P.C. with a report that during investigation a prima facie case under Sections 363/376(1) IPC read with Section 4 POCSO Act was found well established against the accused/appellant and prayer was made to direct him to stand trial further indicating that there are witnesses who may be summoned in this regard.

4. The learned Special Judge (POCSO) Court, Ri-Bhoi District, Nongpoh has taken up the matter and has accordingly framed charges against the accused/appellant under the aforesaid sections of law, that is under Sections 363/376(1) IPC read with Section 4 of the POCSO Act and has commenced the trial by summoning the witnesses cited in the case registered as Special (POCSO) Case No. 04 of 2015.

5. The Prosecution has then examined 13(thirteen) witnesses and after recording the statement of the accused under Section 313 Cr.P.C, on being asked as to whether he wishes to adduce evidence from his side, on an affirmative reply, the Court has examined two defence witnesses as DW-1 and 2 DW-2 respectively. Thereafter, the argument of the parties was heard by the Court and on consideration of the same including the statements of the witnesses and the materials on record, the Court has found that the charges against the accused are well founded and accordingly, vide Judgment dated 07.02.2020 he was convicted and vide Order dated 19.02.2020, he was sentenced to undergo Rigorous Imprisonment of 10(ten) years with fine of ₹1,00,000/- (Rupees One lakh) and in default of the same, he shall undergo Simple Imprisonment of 1(one) year for the offence punishable under Section 376(1) IPC and for the offence under Section 363 IPC, he was further sentenced to undergo Simple Imprisonment of 5(five) years with fine of ₹25,000/- (Rupees twenty-five thousand). The above sentences will however run concurrently, it was further held.

6. Being highly aggrieved and dissatisfied with the said Judgment and Order of the learned Special Judge, the convict/appellant, Shri. Amit Kumar Gupta has approached this Court with this instant appeal inter alia, on the ground that the impugned judgment is bad in law and facts and that the same is perverse, based on mere surmises and conjectures and not supported by facts or materials or evidence against the appellant and as such, the same is liable to be set aside and quashed.

7. We have heard the arguments of the appellant through the learned counsel Mr. R. Gurung, who has assailed the impugned judgement and order mainly on the ground that the age of the prosecutrix could not be ascertained from the record to prove that she was a minor or below the age of 18(eighteen) years, which evidence would then have a bearing on the case of the 3 prosecution as regard the allegation of kidnapping and the alleged sexual act between the appellant and the prosecutrix, if it is proved that she was a minor at the time of the alleged incident.

8. On the issue of age of the prosecutrix, the learned counsel has submitted that no documentary proof of age such as birth certificate, school admit card etc. were produced before the Trial Court for ascertaining the age of the prosecutrix and there are conflicting statements made by the witnesses including the prosecutrix to come to any conclusive proof as to the exact age of the prosecutrix at the time of the alleged occurrence.

9. Leading this Court to the evidence of the PW-13, the Investigating Officer (I/O) of the case, Mr. Gurung has pointed out that in her evidence, this witness has stated that she had seized the photocopy of the admit card of Board Examination of Class IX and photo copy of the birth certificate of the prosecutrix vide Seizure List dated 02.07.2013, however this witness has never produced the said documents in evidence before the court, but has introduced only the said Seizure List as Exhibit-8. In the said Seizure List, the date of birth of the prosecutrix was not reflected. The Investigating Officer on being cross-examined on this point has stated that the age of the prosecutrix was 15(fifteen) years at the time of the occurrence.

10. The Complainant who is the father of the prosecutrix in his deposition before the Trial Court as PW-4 has not disclosed anything about the age of the prosecutrix. The mother of the prosecutrix in her statement before the Trial Court as PW-6, without giving the exact date has stated that the age of the prosecutrix was 17(seventeen) years at the time of the occurrence without any 4 basis or record. The prosecutrix in her deposition before the Trial Court has not given her exact date of birth, but has stated that she was 16(sixteen) years on the date of the occurrence, this too without any documentary proof.

11. In the absence of any documentary proof and the various contradictions found in the statement of the said witnesses mentioned above as regard the exact age of the prosecutrix, learned counsel for the appellant has submitted that medical examination of the prosecutrix as per Rule 12 of the Juvenile Justice (Care and Protection) Rules, 2007 ought to have been conducted to ascertain the age of the prosecutrix, but the same was not done. This, in effect would show that the prosecution has failed to prove that the prosecutrix was a minor on the date of the occurrence and hence, Section 363 IPC as well as the provisions of the POCSO Act would not be attracted in this case.

12. To support his contention on the issue of age, the learned counsel for the appellant has cited the following authorities:-

i) Roshan Lal v. State of Madhya Pradesh: 2010 SCC Online Chh 165 paragraphs 9 & 10;

ii) Mussauddin Ahmed v. State of Assam: (2009) 14 SCC 541 paragraph 11;

iii) Koli Jaga Rana v. State of Gujarat: 1992 SCC Online Guj 274 paragraph 11;

iv) Sunil v. State of Haryana: (2010) 1 SCC 742 paragraphs 24, 26 & 27

v) Birad Mal Singhvi v. Anand Purohit: 1988 (Supp) SCC 604 paragraph 14;

vi) State of Chhattisgarh v. Madhu Kerketta: 2010 SCC Online Chh, 161 paragraph 10;

vii) C. Doddanarayana Reddy v. C. Jayarama Reddy: (2020) 4 SCC 659 paragraphs 18 ,19;

viii) Alamelu & Anr v. State: (2011) 2 SCC 385 paragraphs 42, 43 & 49;

ix) State of Himachal Pradesh v. Mt. Kala & Ors: 1957 SCC Online HP 1 paragraphs 22 & 28;

x) Jarnail Singh v. State of Haryana: (2013) 7 SCC 263 paragraphs 22 & 23.

13. The next contention of the learned counsel for the appellant is that the learned Trial Court has failed to understand the import of Section 313 Cr.P.C. and when the appellant/accused was confronted with the circumstances appearing in the evidence against him, he was not confronted with the vital question regarding the juvenility of the prosecutrix nor was any question put to him regarding her age and medical certificates and as such, it is well settled that circumstances not referred to or confronted to the accused/appellant under Section 313 Cr.P.C cannot be used against him and must be excluded from consideration, which was not the case here as the Trial Court without examining the factual and legal issues has come to the conclusion that the prosecutrix was a minor at the time of the alleged abduction. The case of Maheshwar Tigga v. State of Jharkhand: (2020) 10 SCC 108 paragraphs 8, 9 & 16 was cited in this regard.

14. Finally, the learned counsel has submitted that nowhere in the prosecution case was the word rape uttered. Even all the witnesses in the case have also not stated that the appellant has raped the prosecutrix. In fact, the evidence would show that the sexual act between them was consensual.

15. Taking up the statement of the PW-10, Mr. Gurung has submitted that this witness who was the classmate of the prosecutrix was told by her that she was in love with the accused/appellant and that she once told this witness that she will elope with him if the relationship is not approved by her parents. This witness further related an incident when she had to go to UCC College for admission of her elder sister and the prosecutrix accompanied her. On boarding a local taxi, they met the appellant who decided to go along with them to UCC. In the Taxi, the prosecutrix was sitting with the appellant at the back side while this witness was sitting in front, however she saw that they were holding hands and were behaving normally. In her cross-examination, this witness has reiterated that the prosecutrix used to tell her that she will run away with the appellant and that she will commit suicide if her parents do not allow the relationship.

16. Mr. Gurung has referred to the deposition of the Doctor (PW-1) who had conducted the medical examination of the prosecutrix. This witness has stated that the prosecutrix had related to her that on 31.05.2013 at about 6:30 PM while returning home from tuition, she was made to go with the appellant in a Wagon-R to Guwahati straight to the airport with the intention of taking any available flight. However, since no flight was available, they went to a hotel where rooms were booked separately for them. The appellant told the 7 hotel staff that they were siblings. The prosecutrix also said that she was given Mazza drink on the way to the airport due to which she was not fully oriented and was somewhat drunk when they arrived at the hotel. During the night, the appellant came to her room and had sexual relations with her, but she could not fight him off. The next morning they went to the airport again, but there was no flight available and while returning back from the airport, on the way they met her relatives. Again, in her statement under Section 164 Cr.P.C, which was recorded after a lapse of one month, thus giving rise to the apprehension that she may have been tutored, the prosecutrix had stated that on 31.05.2013 she went to take tuition in her sister's place at the Army quarters and while coming back at 6:00 PM she met the appellant who said that he wanted to treat her as a sister and offered her Mazza to which she took a few sips. After that she became unconscious and the appellant took her to Guwahati to get a flight, but it was too late, so he took her to the hotel. She was not fully conscious of what happened.

17. On leading this Court to the evidence of the prosecutrix, Mr. Gurung has submitted that the prosecutrix was examined as PW-3 and in her Examination-In-Chief, she stated that she knew the accused standing in the dock and that on 31.05.2013 at about 5:00 PM while she was coming from tuition from Umroi Cantonment, she met the accused and while they were talking, he offered her juice (Mazza juice) which after taking it she felt dizzy and became unconscious and did not know what happened, except the next morning at the hotel at Guwahati. While on the way to the airport, she saw her father who stopped their vehicle and took her out of the same and then they 8 were sent to Umiam Police Station. In her cross-examination, the prosecutrix stated that she knew the accused since childhood. He took her to Guwahati on 31.05.2013 in a Wagon-R arranged by him, but whose registration number she does not know. She further stated that she does not remember any attempt of sexual intercourse in Guwahati as she was not in her sense.

18. Mr. Gurung has submitted that the prosecutrix had improved her statement from the time she had related the incident to the Doctor, then in her examination under Section 164 Cr.P.C. and in her examination-in-chief which is contradictory, inasmuch as, she had stated that she was given Mazza drink on the way to the airport which means that she had boarded the vehicle voluntarily and even after stating that she was not conscious after drinking the Mazza, she could still recall that they went to the airport and not being able to get a flight, they came to the hotel and there they were booked in separate rooms and informed the hotel management that they were siblings and also that the driver was a family driver, apart from the fact that she said that she was residing at Police Bazaar, Shillong when in fact she was residing at Rongmen.

19. The statement of the Investigating Officer (I/O) was also relied upon by the learned counsel for the appellant to say that the I/O in her cross- examination had stated that there is a contradiction in the statement of the victim recorded under Sections 161 and 164 Cr.P.C. where the victim initially stated that she was having an affair with the accused and later on retracted her statement and said that the accused was only known to her. Further, this 9 witness has stated that she came to know from reliable sources that the accused and the victim had eloped in the vehicle.

20. Again, learned counsel for the appellant has submitted that in view of the statements and narration of the alleged events by the prosecutrix and other witnesses, on the issue of corroboration, apart from the evidence of the PW- 10, the friend of the prosecutrix, the evidence of PW-5, the owner of the hotel is also vital, inasmuch as, he has stated that he remembered two young persons, the accused and the prosecutrix along with another person named Vijay who came to his hotel on 31.05.2013 and introduced themselves as siblings and the other one as the driver. They informed him that they are going to Varanasi and he was convinced that they were from the same family and accordingly, accommodated them in room No. 108 (A.C. Room) having single king size bed for the accused and the prosecutrix and another room No. 107 (without A.C.) for the driver. The next morning these persons left the hotel and their signatures (of the accused and prosecutrix) was obtained in the register. From the cross-examination of the said hotel owner/PW-5, it is revealed that he was told by the accused and the prosecutrix that they were going to Varanasi as some of their relatives is suffering there. Again, their behaviour at the hotel was so intimate that he has no doubt that they are siblings.

21. Next, coming to the evidence of the first driver, Mr. Gurung has submitted that on being examined as PW-11, it is learnt from him that his vehicle was booked by the accused who has told him that he was required to drop some officers to the airport. This witness further deposed that he knew 10 the accused who is his neighbour in the village and he also knew the prosecutrix and on meeting them, they got inside the vehicle and told him to drop them to Guwahati, however on reaching Lalsharai, the vehicle broke down and this witness then contacted his friend, named Vijay Thapa who is also a tourist taxi driver like him.

22. PW-12 is the said Vijay Thapa who has stated that the accused and the prosecutrix got inside his vehicle and told him to drop them to Guwahati airport. Before reaching the airport, they stopped at the hotel. The next morning, the couple left the hotel along with him and they proceeded towards the railway station. In the cross-examination, this witness has stated that the prosecutrix was normal when she was travelling in the vehicle. He came to know that they have eloped only when he was intercepted.

23. DW-1 is a close neighbour of the prosecutrix and he has often seen the accused and the prosecutrix roaming together. This witness have also advised the parents of both of them to get them married. This witness further stated that there was no forceful act and it was done willingly as the girl told the boy to take her away as she is willing to stay with him.

24. Similarly, DW-2 who is also the neighbour of the couple knows about the relationship between the two and he also knew that they have eloped to Guwahati and as such, according to this witness, it is not a case of kidnapping and rape but elopement.

25. In this respect, the learned counsel has submitted that in law, conviction of an accused can be sustained on the basis of the testimony of the prosecutrix alone, but only if her evidence inspires confidence and appears to be natural 11 and truthful. However, in this case, the evidence of the prosecutrix is not reliable, but is contradictory as well, invaded with gradual improvement with no corroboration by any of the prosecution witnesses. It is therefore a case of false implication of the appellant herein.

26. In this connection, the learned counsel has relied on the following judgments:

i) Krishan Kumar Malik v. State of Haryana: (2011) 7 SCC 130 paragraphs 31 & 32;

ii) Narendra Kumar v. State (NCT of Delhi): (2012) 7 SCC 171 paragraphs 22, 23, 24, 25, 29, 30, 31 & 32;

iii) Lal Marandi v. State of Bihar: 2006 SCC Online Jhar 214 paragraphs 8, 9 & 10;

iv) Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr:

(2003) 3 SCC 175 paragraph 21;

v) Tameezuddin v. State (NCT of Delhi): (2009) 15 SCC 566, paragraph 9;

vi) Dinesh Jaiswal v. State of Madhya Pradesh: (2010) 3 SCC 232 paragraph 10;

vii) Jinish Lal Sah v. State of Bihar: (2003) 1 SCC 605 paragraphs 7 & 8.

27. On the statement of the prosecutrix that she was made to drink Mazza as a result of which she became unconscious and could not recall any of the events leading to her being taken to Guwahati airport and to be made to stay the night at the hotel with the accused, Mr. Gurung has submitted that from 12 the evidence, it transpired that the prosecutrix and the accused has boarded the vehicle together at the place of occurrence and due to unavailability of flights from Guwahati airport, they had gone to stay at the said hotel. Further, they were also present at the place where the first vehicle broke down and after waiting for about an hour, they boarded another tourist taxi. It was also submitted that the prosecutrix has been moving from place to place, to the airport then to the hotel which is a crowded public place, nothing prevented the prosecutrix to shout for help to free herself, but nothing was done which only implies that the prosecutrix was a consenting party to the incident and she has falsely implicated the accused only when they were caught by her relatives.

28. The following cases were cited in this regard:

i) Noor Alam Momin v. State of Bihar: 2004 SCC Online Jhar 33, paragraphs 8 & 10;

ii) Manoj Kumar Munda v. State of Bihar: 2004 SCC Online Jhar 87, paragraphs 8 & 9.

29. On medical evidence, Mr. Gurung has submitted that there are serious lacunae in the medical reports as the prosecutrix has refused to undergo PV test to ascertain whether the hymen is intact. The evidence of the Doctor attributing minor injury outside the vagina was not explained by the Doctor. As to the accused, PW-13 in her evidence has stated that the FSL report of the accused is found to be negative of any sexual offence. The mandatory smegma test of the accused was not done. Learned counsel submits that as there is no proper and conclusive medical findings, the accused/appellant cannot be 13 convicted for the offence of rape. The case of A. Kamaraju Patro v. State of Orissa: 1990 SCC Online Ori 335 para 5 and the case of Dr. S.P. Kohli v. High Court of Punjab and Haryana: (1979) 1 SCC 212, paragraph 12 was relied upon by the learned counsel on this issue.

30. Finally, Mr. Gurung has submitted that in a case of rape, the onus is always on the prosecution to prove the case beyond reasonable doubt and this onus never shifts and while considering the case in its entirety, the prosecution has not been able to make out a case of conviction of the accused/appellant and the decision of the learned Trial Court is liable to be overturned and the appellant to be discharged and released forthwith. The case of Koli Jaga Rana v. State of Gujarat: 1992 SCC Online Guj 274 paragraph 8 was referred to by the learned counsel in this regard.

31. Per contra, Mr. K. Khan, learned Sr. Public Prosecutor, appearing for the State Respondents has countered the submission and contention of the learned counsel for the appellant by taking this Court to the provision of Section 3 of the Evidence Act, and has submitted that all statements oral or documentary which the court permits, would become evidence. In the definition of the word evidence in Section 3, Clause 1 speaks about oral evidence. From the evidence of the Mother, the age of the prosecutrix was stated as 17(seventeen) years while the father has stated that she was 15(fifteen) years and these statements have not been contradicted in the cross- examination. Therefore, the test of Section 3 Clause 1 on oral evidence has been satisfied. In fact, none of the witnesses has ever stated that the age of the victim is above 18(eighteen) years, which is the permissible age according to 14 law for, if that has been the case, then the prosecution would have to go to documentary evidence to prove this point.

32. Mr. Khan has further submitted that there has not been any contradiction to the previous statements of the prosecutrix under Sections 161 and 164 Cr.P.C. respectively and as such, the law of contradiction as laid down in Section 145 of the Evidence Act has not been satisfied.

33. Referring to the provision of Rule 12 of the Juvenile Justice Rules, 2007 as regard the determination of age of a juvenile, emphasis has been laid on the fact that in such case, an application before the court has to be made which was not done so in this case.

34. On the issue of kidnapping, Mr. Khan has candidly submitted that it appears from the evidence led that it was between the boy and the girl and that it was not a case of kidnapping. It cannot also be enticement, but could be a joint venture between the two. However, Section 361 IPC speaks of a situation where a minor is taken or enticed from the lawful or legal guardian and therefore, the punishment under Section 363 IPC is attracted. In this case, the prosecutrix was taken away from the lawful or legal guardians who are the parents without their consent as was evident from the FIR lodged by the father of the prosecutrix, who has informed the police that his daughter (prosecutrix) was missing and was suspected to have been kidnapped by the accused/appellant.

35. Lastly, on the contention of the learned counsel for the appellant that there was consensual sex between the appellant and the prosecutrix, learned Sr. Public Prosecutor has submitted that Section 375 IPC has listed the 15 circumstance where sexual intercourse can be classed as rape, the sixth case is when a man is said to have committed rape if such an act is done with or without the consent of the girl who is under 18(eighteen) years of age which is the case here as the prosecutrix was a minor at the time of the incident where even the medical evidence corroborated by the evidence of the Doctor(PW-1) has confirmed that on examination of the prosecutrix, genital injury was detected.

36. On the three issues, that is, on age, kidnapping and on sexual intercourse, Mr. Khan asserted that the prosecution has led evidence not to prove conclusively, but to prove beyond reasonable doubt where there is an element of doubt and as such, the offences alleged, that is under Sections 363, 376 IPC and Section 4 of the POCSO Act stands proved by evidence, medical and oral and was duly corroborated.

37. We have considered the argument raised by the learned counsel for the appellant as well as the counter issued by the learned Sr. Public Prosecutor and needless to say, the records before us have been perused, including the impugned judgment and order.

38. The facts and circumstances of the case need not be reiterated as the same has been reflected above, except to mention whatever is relevant to for discussion, observation and findings thereon. However, a brief recapitulating, the case of the prosecution may not be out of place. On the basis of the FIR dated 31.05.2013 lodged by Shri Subhash Bhattacharjee informing the police of his missing daughter and further suspecting that she had been kidnapped by the appellant herein, a case was registered and the accused/appellant was 16 apprehended on the same day itself. The I/O has found it fit to charge the accused/appellant with offences under Sections 363/376(1) IPC read with Section 4 of the POCSO Act, 2012.

39. Now before proceeding further, it would be, but proper, to cite the above provisions and to find out from the evidence and materials on record as to whether the learned Special Judge was justified in his findings which merits conviction of the accused/appellant under the aforesaid provisions of law.

40. Section 363 IPC reads as follows:

"363. Punishment for kidnapping.--Whoever kidnaps any person from 1[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."

41. Section 376(1) IPC reads as follows:

"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 ten years, but which may extend to imprisonment for life, and shall also be liable to fine."

42. Section 4 of the Protection of Children from Sexual Offences Act, 2012 reads as follows:

"4. Punishment for penetrative sexual assault. - (1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."

43. As submitted by the learned Sr. Public Prosecutor in the context of this instant case, the above sections are further qualified by reading Section 361 together with Section 363 and Section 375, the sixth case read with Section 376(1) IPC as the case involved a minor for which Section 4 of the POCSO Act was also added.

44. On appreciation of the case of the appellant, this Court is of the view that the most pertinent issue to be discussed which will decide which way the balance will swing is the issue of determination of age of the prosecutrix, for in doing so, the fate of the appellant will be decided either for or against him.

45. In the words of the learned counsel for the appellant, there was inconsistency and contradictions in the determination of the age of the prosecutrix herein, which is apparent from the contents of the FIR, the evidence of the father and that of the mother respectively as well as that of the Doctor not to speak of the I/O who has failed to even produce the relevant documents in this regard which were in her possession.

46. Let us first look at the FIR which contained the information first in point of time. Exhibit 6 is the FIR wherein the informant has stated that his 15(fifteen) year old daughter was missing. Next, in the statement of the prosecutrix under Section 164 Cr.P.C, her age as on 16.07.2013 was recorded as 16(sixteen) years. The prosecutrix on being examined before the court as PW-3 on 18.03.2015 has recorded her age as 18(eighteen) years. The mother (PW-6) of the prosecutrix in her evidence has however stated that her daughter 18 (prosecutrix) was 17(seventeen) years old at the time of the occurrence. The I/O (PW-13) in her deposition has first stated that she was informed by the father of the prosecutrix that her age was 16(sixteen) years, then in her further statement, she has categorically stated that she had enquired about the age of the prosecutrix from her father who informed her that the date of birth is 22.02.1997. This witness has also stated that she had seized the photo copy of the Admit Card of the Board Examination of Class-IX, the mark sheet and more importantly, the Birth certificate of the prosecutrix.

47. From the above, it could be seen that the age of the prosecutrix was given as 15, 16 and 17 years, therefore there is no clear evidence as to the exact date of birth or age of the prosecutrix. It may be mentioned that the I/O (PW-13) even though she has referred in her evidence about the Admit Card and Birth Certificate of the prosecutrix, but strangely enough, the same were not brought on record as documentary evidence and even if the same were introduced in evidence, the test of Section 35 of the Evidence Act, 1872 has to be carried out, in so far as the public register in which an entry of the said birth certificate is made, has to be proved to confirm its authenticity or to confirm the relevancy of such fact, which was not done so in this case.

48. There are mainly two ways and methods for determination of age in the context of a juvenile in conflict with law or even a victim of crime. These two widely accepted ways are by documentary proof and in the absence of such documentary proof, by medical evidence or examination, particularly the ossification test, etc. 19

49. The accepted procedure for determination of age has been widely accepted to be under the Juvenile Justice (Care and Protection of Children) Act read with the Juvenile Justice (Care and Protection of Children) Rules, 2007, wherein at Rule 12, the procedure has been laid down. However, under Section 94 of the Juvenile Justice (Care and protection of Children) Act, 2015, an almost identical procedure has been prescribed.

50. Rule 12 and Section 94 as mentioned above are reproduced herein below as :-

"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 20 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 Ihe 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."

"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 21 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:

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."

51. Coming to the case in hand, it is seen from the impugned judgment that the learned Special Judge at paragraph 41 of the same has come to a finding that the prosecution has been able to prove the date of birth as 22.02.1997 by documentary proof which was not exhibited, but proved by I/O. This by itself is contradictory, as it is admitted that the said birth certificate has not been exhibited and as such, as mentioned above, has not passed the test of Section 35 of the Evidence Act, therefore such finding is not in conformity with the procedure of law. The said finding cannot be accepted by this Court.

52. Now in absence of documentary proof of age or date of birth, it is but logical that the court should have resorted to the other method that is medical examination, which have not been done in this case. Therefore, no conclusive evidence has been reached, as far as the age or date of birth of the prosecutrix is concerned.

53. Though all the authorities cited by the learned counsel for the appellant on this issue are not required to be reproduced or referred herein, some 22 relevant portions of the same will however be noted to elucidate a point in question.

54. In the case of Sunil v. State of Haryana (supra) at paragraphs 24 and 26, the similarity with the case under consideration is noted. The same are reproduced below:

"24. Dr. Verma P.W.1, who had clinically examined the prosecutrix, found that her secondary sex characters were well developed. The short question in the facts and circumstances of this case that remains to be determined is whether the prosecutrix was a minor? Dr. Sadhna Verma, PW1 who examined the prosecutrix referred her for verification to the dental surgeon and the radiologist. The failure of getting the prosecutrix examined from the dental surgeon or the radiologist despite the fact that she was referred to them by Dr. Sadhna Verma, PW 1 is a serious flaw in the prosecution version. We are not laying down as a rule that all these tests must be performed in all cases, but in the instant case, in the absence of primary evidence, reports of the dental surgeon and the radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix.

26. Bishan, PW 8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date."

55. The case of Jarnail Singh v. State of Haryana (supra) at paragraphs 22 and 23 are also worth noting, inasmuch as, in this judgment, the Apex Court has held that age determination under Rule 12 though strictly applicable only to determine the age of a child in conflict with law, the same should also form the basis for determination of age of a child who is a victim of crime. The above mentioned paragraphs reads as follows:

"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads 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 24 conclusive proof of the age as regards such child or Ihe juvenile in conflict with law.

23. 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 of a child who is a victim of crime. For, in our view, there is hardly any difference insofar 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, PW 6. 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 child concerned 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 25 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 child concerned, on the basis of medical opinion."

56. The case of Koli Jaga Rana v. State of Gujarat (supra) at paragraph 11 is also similar to the case in hand, except for the fact that in the case of the appellant herein, no medical process such as X-Rays etc. was done. The said paragraph is quoted herein below as:

"11. We would like to discuss first the evidence led by the prosecution with regard to the age of the prosecutrix. For the purpose of proving the age of the prosecutrix, the material witnesses are the mother of the prosecutrix, viz. Kunverben at Ex. 14 and Dr. Ramesh Varde at Ex. 11. Kunverben has stated in her evidence in Para 1 that the age of the prosecutrix Vijaya is 17 years. So far as the evidence of Dr. Ramesh Varde is concerned, he has stated that he examined the prosecutrix on 26- 7-1990. She had come with a Police Yadi and a lady constable with a view to examine the prosecutrix for the purpose of fixing the age and also to examine whether rape was committed on her. According to this witness, he examined the prosecutrix and according to the opinion of this doctor, she was between the age of 18 to 20 years. He has also produced Ex. 12 wherein he has given his opinion in writing with regard to the age and it is stated in that opinion, Ex. 12, that according to X-rays, her age is above 18 years and below 20 years. In the absence of any other documentary evidence, viz. birth Certificate or the School Leaving Certificate, more reliable evidence, according to our opinion, is that of the doctor, which is based on X-rays and, therefore, we are of the opinion that the prosecution has failed to prove that the prosecutrix was minor i.e. below the age of 18 years."

57. In the case of Mussauddin Ahmed v. State of Assam (supra), the learned counsel for the appellant has referred to paragraph 11 in which the Hon'ble Supreme Court has held that:

"11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohd. Haji Latif:

AIR 1968 SC 1413."

58. The learned Sr. Public Prosecutor has contended that in the absence of contradiction raised by the accused/appellant at the Trial Court, Section 3 of the Evidence Act was brought to the fore to say that the statements permitted by the Court (even without contradiction) are oral evidence, which is sufficient to prove the case of the prosecution as regard the age of the prosecutrix in this case. This argument will no doubt be acceptable in the context of this case, if all the prosecution witnesses are consistent and definite as to the age of the prosecutrix, but the fact is, the age of the prosecutrix was stated to be 15, 16 and even 17 years on several occasions. If this is the case, the age of the prosecutrix could also be assumed and presumed to be 18 years and above, in the absence of evidence in this regard. This Court would not rely on surmises and conjectures when it comes to determination of age of a victim or crime. The argument of the learned Sr. Public Prosecutor in this respect is therefore not tenable.

59. Tested on the anvil of the above, in this case, we agree with the contention of the learned counsel for the appellant that the age of the 27 prosecutrix has not been determined and as such, one cannot come to the conclusion that she is a minor or a major at the time of the occurrence. The benefit of doubt as is settled in law, should go to the accused/appellant.

60. Now coming to the issue of kidnapping, that is Sections 361 and 363 IPC, the evidence on record would show that the father of the prosecutrix was the complainant who had filed the FIR. In his deposition, he has stated that in the year 2013, the exact date of which he does not remember, his daughter was found missing at 5:30 PM. He received information from one sepoy who saw his daughter with the accused/appellant in a vehicle, thus he believed that his daughter was kidnapped.

61. The statement of the prosecutrix before the Court would reveal that she has stated that on 31.05.2013 at about 5:30 PM, while coming from tuition from Umroi Cantonment, she met the appellant and as they were talking, he offered her a juice (Mazza juice) and after having that juice, she became unconscious and became conscious only the next morning at the hotel at Guwahati. Then on the way to the airport, she saw her father and he too saw her, then he stopped her vehicle and took her to Umiam P.S. In the cross- examination, she has stated that the vehicle arranged by the accused was a Wagon-R. That the juice given to her was before they boarded the vehicle. She had also denied that she had asked the driver Vijay Thapa to take them to Guwahati. She had also stated that she does not know anything about the statement of Jitumoni Thakuria. Again, she also refuted the statement of her friend Rohina Vaiphei as false.

62. The evidence of PW-11, Shri Blowin Thankhiew is material, inasmuch as, he has stated that he is a tourist taxi driver and during the year 2013, he got a call from the accused on his mobile who requested him to drop some officers to Guwahati Airport. However, when he came, he saw the accused and one girl who is also his neighbour and the accused directed him to go to Lad Umroi and to drop him at Guwahati. However, on reaching Lalsharai, the car broke down and this witness called up another friend named Vijay Thapa who is also a tourist taxi driver. In the cross-examination, this witness has stated that the victim/prosecutrix went voluntarily with the accused/appellant and they were sitting in the rear seat. He also did not see the accused forcing the prosecutrix. It was about 6:00 PM then.

63. Vijay Thapa was examined as PW-12. This witness stated that he received a call from his friend, a fellow taxi driver informing him that his car broke down near Fun Thrill Park at Lalsharai and has requested him to drop his passenger to the airport. This witness reached the place at about 7:00 to 8:00 PM and saw the Maruti Alto of his friend and two passengers sitting in the car, the accused person and the prosecutrix whom he recognised as the daughter of a contractor named Subhash. Both of them then got inside his vehicle and told him to drop at the airport. They then stopped at the hotel and booked three rooms in the hotel. In his cross-examination, this witness has stated that the victim/prosecutrix was normal when she was travelling in the vehicle.

64. The testimony of Shri Jitumoni Thakuria (PW-5), the hotel owner is important. This witness has stated that he is the owner of Hotel Rajshree Inn 29 VIP road, Guwahati. He remembered three persons, that is, the accused/appellant, the prosecutrix and the driver who came to his hotel on 31.05.2013 and introduced themselves as siblings and the other one as the driver. They told him that they are going to Varanasi, and since he was convinced that they were from the same family, he accommodated them in room No. 108 (A.C. Room) for the two of them and for the driver in room No. 107 (without A.C.). The next morning they left the hotel at 5:00 AM after they have signed in the hotel register. This witness in his cross-examination has also stated that while the accused and the victim reached the hotel, he found that they were normal. They informed him that they are going to Varanasi as some of their relative is sick. Further, this witness has submitted that after interrogating him, the I/O came to know that these two have eloped.

65. The I/O (PW-13) in her evidence has stated in her cross-examination that "It is a fact that though the victim has stated in her statement that she was administered intoxicating drinks mixed with Mazza, during my investigation, I did not find any evidence". Further, this witness has stated that there is a contradiction in the statement of the victim recorded under Section 161 Cr.P.C where the victim initially stated that she was having an affair with the accused/appellant, but later she retracted to say that the accused was only known to her. This witness has however stated that she came to know from reliable sources that the accused had eloped with the victim/prosecutrix in the vehicle.

66. From the above, what can be deduced is that the prosecutrix and the appellant are known to each other since she has allegedly taken the Mazza 30 juice he has offered her. The prosecutrix has stated that as soon as she had taken the said juice, she became unconscious. However, this statement is contradicted by the fact that PW-11, Shri Blowin Thankhiew, the driver of the first vehicle did not say anything on this when the couple entered his vehicle. The fact that his vehicle broke down at Lalsharai also implies that the accused and the prosecutrix got down from his vehicle and boarded the other vehicle driven by Vijay Thapa (PW-12). There too, PW-12 did not say anything about the girl being unconscious while they boarded his vehicle. Again, when they reached the hotel, the Hotel Owner (PW-5) interacted with them to the extent that they said that they were siblings. Here too, nothing was said about the prosecutrix being unconscious. This only goes to prove that the prosecutrix was not rendered unconscious when she was in the company of the accused/appellant. Another factor which was brought to the attention of this Court is that if the prosecutrix contends that she was kidnapped or enticed, then she had every opportunity while at the hotel and at the airport where there are a number of people to raise a hue and cry and to try and escape, but the prosecutrix did neither of this, which only goes to prove that she had willingly gone with the appellant. The question of being enticed to go with the appellant does not therefore arise in this case. Section 361 read with Section 363 IPC is not attracted in this case.

67. In the case of Jinish Lal Sah v. State of Bihar (supra) relied upon by the appellant, at paragraph 7 of the same, the Hon'ble Supreme Court has held as under:

"7. There is no doubt that the appellant who was a tuition teacher of PW 1 has misused the trust reposed in him by the PW 1's family but then since the prosecution has failed to establish the fact that PW 1 was below the age of 18 and the evidence on record indicates that PW 1 had willingly gone away with the appellant, and in the absence of any threat, coercion or inducement, having been established by the prosecution we think it not possible to rely on the prosecution case to come to the conclusion that the appellant is guilty of the charges framed against him under Sections 366-A and 376 IPC or even Section 366 as contended by the learned counsel for the State."

68. Again, in the case of Noor Alam Momin v. State of Bihar (supra), at paragraph 8, the Hon'ble Supreme Court has held as under:

"8. On perusal of materials on record, it appears that, at about 3-4 AM in the night she had gone to answer the call of nature and from there at the point of Chhura appellant took her to his house situated at a distance of half km from the house of prosecutrix. She was kept in his house for one day and from there she was taken to some other place by a jeep. She went to Pakur where some lawyers came and obtained her signatures on papers typed in English and she was then taken to a photographer's shop at Pakur and photograph of both of them was taken. She has also admitted that she wrote letters to the appellant but she says that she was pressurized to write those letters. From the contents of the letters said to have been written by PW-7, it does not appear that those letters have been written under pressure because language is such which appears to have been written after a lot of thought and through these letters a girl has expressed her feelings to her lover. Further she was taken to different places but she did not raise any alarm that she has been forcefully kidnapped and being taken to different places."

69. On consideration of the above, we find that the prosecutrix has not been able to convince this Court that she was enticed by the appellant into accompanying him and even otherwise, the fact that she has not been proved to be a minor at the time of the occurrence, therefore consent of the parents is not required. We are of the view that the evidence of the prosecutrix is not to be wholly relied upon to warrant conviction of the accused/appellant. 32

70. The case of Vimal Suresh Kamble v. Chaluverapinake (supra) at paragraph 21 shows the application of the principles of reliance on the evidence of a solitary witness for the purpose of conviction, however the caveat being that such evidence must inspire the confidence of the Court. The said observation is reproduced herein below as :

"21. On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that PW 1 is not a reliable witness. We, therefore, concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone. It is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible, reasonable view of the evidence on record and, therefore, warrants no interference. This appeal is dismissed."

71. As to the applicability of Section 376 IPC read with Section 4 of the POCSO Act, 2012, this Court finds that there is no evidence of rape at all, even going by the statement of the prosecutrix. She has stated that she could not remember any attempt of sexual intercourse as she was not in her sense. PW-13, the I/O in her deposition has also stated that "From the Medico Legal Report of the accused, I did not get any conclusive evidence of sexual offence". This statement is very material, inasmuch as, no case of sexual offence or rape has been made out. Therefore, Section 376 IPC read with Section 4 of the POCSO Act is not attracted in this case. 33

72. On an overall appreciation of the evidence and the materials on record as well as on consideration of the argument of the learned counsels for the rival parties, we find that the prosecution has not been able to prove its case beyond reasonable doubt. The benefit of doubt should accordingly go to the accused/appellant. Consequently, this Court finds that the learned Special Judge, POCSO Court, Nongpoh has failed to clearly appreciate the evidence on record and has come to a wrong finding to attribute the offences charged to the appellant and consequently to convict him under the sections of law mentioned in the impugned judgment.

73. Accordingly, we hereby reverse the findings in the impugned judgment and overturn the sentence meted out to the appellant by setting aside his conviction.

74. In conclusion, we hereby set aside the conviction of the appellant and he is acquitted accordingly. He is directed to be released forthwith unless wanted in some other cases.

75. Appeal is allowed and stands disposed of. No cost.

76. Registry is directed to send back the Lower Court case record to the concerned Court.

      (W. Diengdoh)                                    (H.S. Thangkhiew)
          Judge                                              Judge



Meghalaya
08.12.2021
"D. Nary, PS"




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Meghalaya High Court

Shri Amit Kumar Gupta vs . State Of Meghalaya & Ors. on 8 December, 2021

Bench: H.S. Thangkhiew, W. Diengdoh