Chattisgarh High Court
Darasay Rajwade vs State Of Chhattisgarh on 30 July, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 527 of 2024
1. Darasay Rajwade S/o Late Nanhu Rajwade Aged About 25 Years R/o Village
Khopa, Chowki Karanji, Police Station Bishrampur, District Surajpur (C.G.)
... Appellant
versus
1. State Of Chhattisgarh Through Station Officer Police Station Bhatgaon, District
Surajpur (C.G.)
... Respondent
(Cause list is taken from CIS) For Petitioner : Mr. Sajal Kumar Gupta, Advocate For Respondent : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon'ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board Per, Ramesh Sinha, Chief Justice 30/07/2024
1. The appeal arise out of the judgment of conviction and sentence dated 21.02.2024 passed by the learned Additional Sessions Judge, Fast Track Special Court, Surajpur, District - Surajpur, Chhattisgarh in Special Sessions Trial No.09/2021 whereby the appellant has been convicted and sentenced in the following manner :
Sl. No. Conviction Sentence
1. Under Section 363 of Rigorous Imprisonment for 4 years and fine of Indian Penal Code. amount of Rs.200/- in default of payment of fine further 4 months rigorous imprisonment.
2. Under Section 366 A Rigorous Imprisonment for 6 years and fine of of Indian Penal amount of Rs.200/- in default of payment of fine Code. further 4 months rigorous imprisonment.
3. Under Section Rigorous Imprisonment for 10 years and fine of 376(2)(n) of Indian amount of Rs.200/- in default of payment of fine Penal Code. further 4 months rigorous imprisonment.
Under Section 5L/6 Rigorous Imprisonment for 20 years and fine of of the Protection of amount of Rs.200/- in default of payment of fine Children From further 4 months rigorous imprisonment.
Sexual Offences Act, 2012 All sentences will run concurrently.
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2. Brief facts of the case as mentioned in the appeal are that the prosecutrix PW-1 has lodged a written complaint (Ex. -P/1) in the Police Station Bhatgaon, District - Surajpur on 29.03.2020 with the effect that on 21.03.2020 the appellant/accused has taken her to village-Khopa on the pretext of marriage and made physical relationship repeatedly. After keeping her for a week, he refused to marry her and ran away on 28.03.2020.
3. The Police has registered FIR on 29.03.2020 for the offence under Section 363, 366, 376 of IPC and under Section 5L/6 of the Protection of Children From Sexual Offences Act, 2012 against the appellant and started investigation. The Prosecutrix was sent for her medical examination to PHC, Ajabnagar, where Dr. Suchita Nirmala Kindo PW - 6 has examined her and gave her report Ex. P/15, in which she opined that prosecutrix is experienced of sexual intercourse. No sign and symptom of forceful sexual intercourse was found. Regarding recent sexual intercourse, 2 slides of prepared of her vaginal smear sealed and handed over for chemical analysis. Further, regarding the age of prosecutrix given note to refer to Radiologist. Thereafter, with respect to the age of the prosecutrix, the Police has seized the School Admission and Discharge register from the Govt. Girls M/s. Salka, Block - Bhalyathan, Distt - Surajpur vide Ex.P/12 and the attested copy of Discharge Register is Ex.P/12C, according to which the date of birth of the prosecutrix is 18.02.2003. During the Course of investigation the appellant was arrested on 30.03.2020 and he was also sent for his medical examination to CHC, Bhatgaon, District - Surajpur (C.G.), where Dr. Ratan Prasad Minj has examined the appellant and opined that the appellant is physically healthy and can perform sexual intercourse. The slides prepared from vaginal swab of the prosecutrix was sent for forensic examination from where the FSL report Ex. P/31 was received and according to which the semen and spermatozoa are absent from the vaginal swab of the prosecutrix. The statement of the prosecutrix under Section 161 and 164 of the CrPC was recorded, the statement of the witnesses under Section 161 of CrPC were also 3 recorded and after completion of the investigation charge-sheet No.27/2020 for the offence under Section 363, 366, 376 of the IPC and Section 5L/6 of POCSO Act, 2012 have been filed before the Additional Sessions Judge(FTSC), under the protection of children from sexual offences Act, 2012, Surajpur, was filed.
4. The trial court has framed charges against the appellant under Section 363, 366A, 376(2)(n) of IPC and Section 5(L)/6 of the POCSO Act against the appellant. The appellant abjured his guilt and plead innocence.
5. In order to establish the charge against the appellant the prosecution has examined as many as 13 witnesses. The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trail court has convicted the accused/appellant and sentences him as mentioned in para 1 of the judgment. Hence, this appeal.
6. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of the incident she was minor and less than 18 years of age. The date of birth of the prosecutrix is based on her mark sheet of class-V and transfer certificate of previous educational institution and she was admitted in Class - VI at the time of her admission in the school. The prosecutrix has not brought any of her guardians. In absence of the school admission and discharge register of her previous educational institutions, the same cannot be taken into consideration for determination of the age of the prosecutrix. School admission and discharge register is of very week type of evidence. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the Uncle, Cousin Sister and Sister-in-law of the prosecutrix have not 4 disclosed any date of birth of her and therefore, there is no legally admissible and convincing evidence available on record to establish that the prosecutrix was minor on the date of incident. Learned counsel for the appellant further argued that the prosecutrix herself went alongwith the appellant and no alarm has been raised while going alongwith the appellant. In her 164 CrPC statement (Ex.-P/05) the prosecutrix stated that she went alongwith the appellant on 21.03.2020 from her village -Adhina to Khopa on motorcycle driven by the appellant. At Village - Khopa she stayed there in the neighborhood house with appellant's mother in night and also informed her sister-in-law regarding her stay and thereafter next day onwards she stayed alongwith the appellant for one week at appellant's relatives house as the appellant promised her to marry. On 28th March, 2020 they returned back to her village and the appellant left her near her house and ran away. In between period of one week, the appellant made physical relationship with her. Since she left her house without informing to anyone, therefore, the prosecutrix on her own will went alongwith the appellant and she was the consenting party. She has not made any compliant while travelling from village -Adhina to Khopa as also while staying at village Khopa and therefore the alleged offences of IPC and POCSO Act are not made out against the appellant and he is entitle for acquittal.
7. On the other hand the learned counsel for the State opposes and contended that the prosecutrix was minor and below 18 years of age at the time of incident which is proved by the School admission and discharge register Ex. P/12C which contains the date of birth of the prosecutrix as 18.02.2003. The school register is admissible piece of evidence to determine the age of the prosecutrix therefore there is no legality or infirmity in the findings of the learned trial court. The prosecutrix was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her therefore the impugned judgment of conviction and sentence needs no interference.
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8. We have heard the learned counsel for the parties and peruse the record with utmost circumstance.
9. In order to consider the age of the prosecutrix we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School admission and discharge register Ex. P/12C which is sought to be proved by PW-5 Johani Tirkey, the Headmaster of the Govt. Girls M/s. Salka, Block - Bhalyathan, Distt - Surajpur. PW-5 Johani Tirkey has stated in her deposition that the Police has seized the school admission and discharge register from her in which the date of birth of the prosecutrix was mentioned as 18.02.2003. She has prepared the true copy of the School admission and discharge register which is Ex. P/12C. In cross examination this witness has said that at the time of admission of the prosecutrix in the school, the birth certificate or Kotwari Panji have not been produced by her any of her guardians and on the basis of her previous school marksheet of Class-V and Transfer Certificate, the entry was made in the School admission and discharge register. PW-2, Uncle of the prosecutrix have not stated any date of birth of her. PW- 3 and PW-4 who are Cousin Sister and Sister-in-law of the prosecutrix have also stated that they could not know date of birth of the prosecutrix, likewise PW-7 who is Sarpanch of the village has also stated that he could not know the date of birth of the prosecutrix. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the prosecutrix.
10. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecutrix so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school admission and discharge register it would not be safe to hold that the prosecutrix was minor on the date of incident. The statement of the prosecutrix, her Uncle (local guardian) and her sister-in-law as also the statement of PW-5 Johani Tirkey, Headmaster of the Govt. Girls M/s. Salka, Block 6
- Bhalyathan, Distt - Surajpur are contradictory to each other and does not inspire confidence upon this court to hold that the date of birth of the prosecutrix is 18.02.2003.
11. In In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon'ble Supreme Court has held as under :
"26. 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."
12. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded.
13. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed 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 7 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 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 (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
14. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under :
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:8
33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
XXXX XXXX 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 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 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.
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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."
15. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under :
"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of 10 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. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."
16. Reverting to the facts of the present case and due consideration of the prosecution evidence we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the prosecutrix was minor on the date of incident yet the trial court in impugned judgment has held her minor, hence, we set aside the finding given by the trail court that on the date of incident the prosecutrix was minor.
17. So far as the issue of forceful sexual intercourse by the appellant upon the prosecutrix is concerned we have carefully perused the statement of the prosecutrix recorded under Section 164 CrPC (Ex.-P/05). In her 164 CrPC statement she has 11 stated that she went alongwith the appellant on 21 st March, 2020 from from her village
-Adhina to Khopa on motorcycle driven by the appellant. At village Khopa they stayed there in the house of appellants relative. On 28 th March, 2020 they returned back to her village. In between that period the appellant made physical relation with her.
18. In her 164 CrPC statement she has not stated that the appellant allured or threatened her or used any force while travelling along with him and while making physical relationship with her against her will or consent.
19. In her deposition the prosecutrix (PW-1) has stated that about 15-20 days ago, appellant Darasay Rajwade, resident of village Khopa, called her on mobile number and she refused to talk to him. After that the appellant started repeatedly asking her to be friend with him and then she disconnected the call and blocked his number. On the same day the appellant called her again from another number and started telling that he loves her and wants to marry her. On the pretext of marriage, she started talking on mobile daily. She used to talk to the appellant through mobile. Thereafter, on 21.03.2020, the appellant called her on mobile and asked her to meet at Omkara School and when she came there, he taken her to Village - Khopa on motorcycle driven by him. At Village - Khopa, they were residing together in appellant's relative house. She stayed their alongwith the appellant about a week. The statement of the prosecutrix is not acceptable that the appellant has taken her after giving threatening to her and teasing her. If, that being so, the prosecutrix would not have been stayed alongwith appellant at Village - Khopa for a period of one week without making any complaint to the persons of nearby locality or while going from her village to Khopa.
20. The PW-2 the Uncle of the prosecutrix have stated in his deposition that on the basis of promise made by the appellant to marry prosecutrix, they have not made report to the police against the appellant and after his refusal to marry the prosecutrix they have made report to the police against the appellant.
21. Dr. Suchita Nirmala Kindo, PW-5 has examined the prosecutrix and gave her report Ex. P/15 in which no any external or internal injury have been found on the 12 body of the prosecutrix as well as there was no sign of recent sexual intercourse. In the slide prepared from the vaginal swab of the prosecutrix, no any semen or spermatozoa were found in forensic examination vide its FSL report Ex. P/31.
22. Close scrutiny of the evidence has made it clear that the prosecutrix was a consenting party and went alongwith the appellant to villager - Khopa on a motorcycle driven by the appellant and stayed with him for about a week at appellant's relative house. She has not made any compliant to any of the near by persons while travelling alongwith the appellant. Neither she was taken by force nor she was abducted by the appellant. She herself accompanied the appellant on her own will and consent. In her 164 CrPC statement the prosecutrix does not disclose any force by which she was being abducted or any forceful sexual intercourse made by the appellant with her.
23. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.
24. Considering the entire evidence available on record, the conduct of the prosecutrix we are of the opinion that the prosecutrix was more than 18 years of age at the time of incident, further she was a consenting party with the appellant therefore, in the above facts and circumstances of the case, the offence under Section 363, 366A, 376(2)(n) of IPC and Section 5(L)/6 of the POCSO Act, would not be made out against the appellant.
25. For the foregoing reasons the appeal is allowed and the judgment of conviction and order of sentence dated 21.02.2024 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 30.03.2020. He be released forthwith if not required in any other case.
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26. Keeping in view of the provisions of section 437-A CrPC, the appellant is directed to furnish a personal bonds in terms of form No.45 prescribed in the code of criminal procedure of sum of Rs.25,000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme court.
27. The Lower Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Ravi Mandavi