Chattisgarh High Court
Bhuneshwar Adil vs State Of Chhattisgarh on 1 August, 2024
1
2024:CGHC:28474
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1087 of 2022
1. Bhuneshwar Adil S/o Sumer Singh Adil Aged About 19 Years.
2. Top Bai Adil W/o Sumer Singh Adil Aged About 55 Years.
Both are R/o Sakin- Mudpar (Sandi) Police Station -Palari,
District- Balodabazar Bhatapara, Chhattisgarh. ... Petitioners
versus
State of Chhattisgarh Through Police Station Incharge -Palari
Balodabazar, District : Balodabazar-Bhathapara, Chhattisgarh.
---- Respondent
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For Appellant : Mr. Shresta Gupta, Advocate & Ms. Sangeeta Mishra, Advocate For Respondent-State : Ms. Mandwi Bhardwaj, PL.
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Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 01.08.2024
1. With the consent of the parties, matter is heard finally.
2. This criminal appeal has been preferred by appellants against the judgment of conviction and order of sentence dated 28.06.2022, passed the learned Session Judge, FTSC (POCSO Act), Balodabazar-Bhatapra, (CG) in Special Criminal Case (POCSO) No.42/2021, whereby appellants stand convicted and sentenced as under: -
Conviction Sentence
U/s 363/34 of the R.I. for 05 years and fine of
Indian Penal Code Rs.500/-, in default of
(in short 'the IPC') payment of fine, additional
R.I. for 06 months.
2
U/s 366(क)/34 of the R.I. for 07 years and fine of
IPC Rs.500/-, in default of
payment of fine, additional
R.I. for 06 months.
U/s 18/34 of R.I. for 05 years and fine of
POCSO Act Rs.1,000/-.
All sentences are directed to run concurrently
3. The prosecution case, in brief, is this that on 19.06.2021 complainant (father of victim/prosecutrix) lodged missing report to the concerned Police Station mentioning therein that her daughter (aged about 14 years) went out from the house on 18.06.2021 without intimating anything to her family members and did not return back. Based upon report, initially the Police registered offence under Section 363 of IPC against known person. During investigation, on 19.06.2021, prosecutrix was recovered from the possession of appellants/accused at village - Sandi. Her statement was recorded under Section 161 of Cr.P.C and, based upon which, accused was arrested in aforementioned crime.
4. On completion of investigation, challan/charge sheet was filed against the appellants for the offence under Sections 363, 366 (क)/34 and Section 18 of the POCSO Act.
5. Prosecution in order to prove its case examined total 09 witnesses. Statement of appellants (accused) was also recorded under Section 313 of CrPC in which they have denied all incriminating evidence appearing against them, pleaded innocence and false implication. However, no evidence was 3 adduced by them in their defence.
6. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellants in the manner as described in Para-1 of this judgment. Hence this appeal.
7. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record. As per case of prosecution, age of the prosecutrix was 14 years at the time of alleged incident, but 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 of prosecutrix mentioned as 25.09.2006 in Dakhil Kharij Register (Ex.P-12) cannot be said to be conclusive as the author of the said document could not be examined. Prosecution did not produce the birth certificate or matriculation certificate of prosecutrix and also failed to explain that on what basis said entry was made in Dakhil Kharij Register. Further, no ossification test of the prosecutrix has been conducted to ascertain her age. Learned counsel further submits that there are many contradictions and omissions in the statement of the prosecutrix, which was not considered properly by learned trial court. From the statement of prosecutrix (PW-2), it reflects that there was affair between appellant No.1 and the prosecutrix and, therefore, she willingly went with him to his village. Hence, impugned 4 judgment of conviction and order of sentence deserves to be set- aside.
8. On the other hand, learned counsel for the State supporting the impugned judgment and submits that consent of prosecutrix is irrelevant as she was minor on the date of alleged incident and this fact has been duly proved by prosecution by adducing oral and documentary evidence. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed.
9. Heard learned counsel for the respective parties and perused the recorded placed on record.
10. Now this Court has to see whether the prosecution has been able to prove that on the date of incident prosecutrix was minor. PW-2/prosecutrix in her deposition has not stated anything with regard to her age or date of birth. Though father of prosecutrix (PW-3) in his deposition has stated that DOB of prosecutrix is 25.09.2006, but did not produce birth certificate/matriculation certificate or any other document regarding DOB of prosecutrix.
The prosecution has heavily relied upon the entry made in Dakhil-Kharij register of Government Primary School, Khartaura, Block Palari, regarding date of birth of prosecutrix. Though in the said register, her date of birth is recorded as 25.09.2006, but PW-5/Headmistress of said school in her cross- examination admitted that she is not the author who recorded 5 DOB of prosecutrix in said register. She further admitted that she has no knowledge as to on what basis DOB of prosecutrix is entered in Dakhil-Kharij register. Mother of prosecutrix (PW-1) in her deposition also failed to explain that on what basis said entry was made in Dakhil Kharij Panji. Though, father of prosecutrix (PW-3) in his deposition has stated that DOB of prosecutrix was entered in Dakhil-Kharij register on the basis of copy of Kotwar, but failed to produce the same. Further, no ossification test of the prosecutrix has been conducted to ascertain her age.
11. 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 Gorkhi Vs. State of U.P.4 held as follows:-
"The age of a person as recorded in the 6 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."
12. In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court observed in para 33 as under:
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a 7 finding stating the age of the person as nearly as may be.
XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court observed in para 33 as under: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.
33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court observed in para 33 as 8 under: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 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 Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the 9 date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:-
"14 This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth.
"14.... The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value."
15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair 10 to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case."
14. In the case of P. Yuvaprakash versus State Rep. By Inspector of Police, AIR 2023 SC 3525, the Hon'ble Supreme Court observed in para 13 as under:
"13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and
(ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board".
15. In light of aforesaid decisions of the Hon'ble Supreme Court, this Court is of the view that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor 11 on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, this Court set aside the finding so recorded by the learned trial Court and hold that the prosecution has not been able to prove that on the date of incident prosecutrix was minor.
16. Now coming to the point whether the appellant has abducted the prosecutrix? Prosecutrix in her statement recorded under Section 164 of Cr.PC has stated that she knows the accused/appellant No.1 for the last one year and also talked with him through mobile phone as they like each other. On the date of alleged incident, accused came to her house at night and on the pretext of marriage took her to his village on motorcycle.
Prosecutrix in her Court statement has stated that on 18.06.2021 at night accused came to her house on motorcycle and on assurance of marriage, she went with him to his village where she slept at night with his mother.
On close scrutiny of the evidence of prosecutrix, makes it clear that the prosecutrix was a consenting party to the act of the accused as she had gone with him of her own free will and stayed at his house.
17. Since this Court has already observed that the prosecution has failed to prove that on the date of incident she was minor, in the given set of facts and circumstances of the case, no offence as alleged against the appellants is made out.
18. In the result, the appeal is allowed and the impugned judgment dated 28.06.2022 (Annexure P-1) is hereby set aside. The 12 appellants are acquitted from all the aforementioned offences. They are reported to be in jail, therefore, they be set free forthwith if not required in any other case.
19. Keeping in view the provisions of Section 437-A of CrPC, the appellants are directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one reliable surety each 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 appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court.
20. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.
Sd/-
(Arvind Kumar Verma) JUDGE J/-