Chattisgarh High Court
Ajay Kumar Khande vs State Of Chhattisgarh on 15 December, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 28.11.2023
Judgment Delivered on : 15.12.2023
Criminal Appeal No. 513 of 2023
Ajay Kumar Khande, S/o Aadhar Khande, Aged About 20 Years,
Resident Of Village Kohadiya, P.S. and District Mungeli,
Chhattisgarh.
---- Petitioner
Versus
State Of Chhattisgarh through - Station House Officer, Police Station
Nawagarh, District - Bemetara, Chhattisgarh.
---- Respondent
For Appellants : Mr. Sudhir Verma, Advocate
For Respondent : Mr. Wasim Miyan, Penal Lawyer
Division Bench:
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Ravindra Kumar Agrawal, Judge
CAV Judgment
Per Ramesh Sinha, Chief Justice
1. The present appeal arises out of the judgment of conviction and sentence dated 30.01.2023 passed by the Additional Sessions Judge F.T.S.C. (POCSO Act) Bemetara, Dist- Bemetara in Sessions Case No. 24 of 2022 whereby the appellant has been convicted & sentenced in the following manner :
S.No. Conviction Sentence 1 U/s 363 of the Indian Penal Rigorous Imprisonment for 04 2 Code years and fine of Rs. 1000/- in default of fine Additional R.I. for 02 months. 2 U/s 366-A of the Indian Penal Rigorous Imprisonment for 07 Code years and fine of Rs.1000/- in default of fine Additional R.I. for 02 months. 3 U/s 376 (2)(j)(n), 376 (3) of the Merged in sentence U/s 6 of Indian Penal Code POCSO Act 2012 4 U/s 6 of POCSO Act, 2012 Rigorous Imprisonment for 20 years and fine of Rs. 2000/- in default of fine Additional R.I. for 02 months.
2. Brief facts of the case are that on 22.01.2022, the father of the prosecutrix has lodged a missing report (Ex. P/3) to the Police Station Nawagarh, Dist- Bemetara with the effect that the prosecutrix who is aged about 14 years and 04 months, studying at Govt. Girls Middle School, Nawagarh, she went to her school on 18.01.2022 at about 11AM and has not returned back till date. When he asked from her friend, her friend disclosed that she went somewhere else from Nawagarh Bus Station. Her Mobile Phone is switched off and even after searched in her relative's house the whereabouts could not be traced out. It is reported that some unknown person have enticed her and taken her along with him. The Police has registered the offences under Section 363 of I.P.C., against unknown person and started investigation.
3. Spot Map (Ex. P/4) and (Ex.-P/17) was prepared. With respect to the age of the prosecutrix, the school admission and discharge 3 register is seized from Govt. Primary School, Daunadih, Tahsil- Nawagarh, vide Ex. P-18 and the original school register was given on supernama after retaining a true copy of the same and the true copy of the school admission and discharge register is Ex. P/20 (c). In school admission and discharge register, the Date of Birth of the prosecutrix is recorded as 20.09.2007. During the course of investigation on 03.04.2022, the prosecutrix was recovered from the possession of the appellant and a recovery panchnama is also prepared vide Ex. P/6. The prosecutrix was sent for her medical examination to CHC Nawagarh, where Dr. Yashika Thaware (PW-1) has examined her and gave her report vide Ex. P/1 and she was also sent for her ossification text to determine her age and the ossification text of the prosecutrix was conducted by Dr. Nil Shayam Thakur (PW-6) who gave the ossification report (Ex. P/1) and opined that the prosecutrix is less than 18 years of the age. In the medical examination, doctor has not found any internal and external injury over the body of the prosecutrix and no sign of resent sexual intercourse was found. Two slides of her vaginal swab was also prepared by the doctor.
4. The appellant was arrested on 05.04.2022 and he was also medically examined. Statement under Section 161 and 164 of Cr.P.C. of the prosecutrix and the statements of the witnesses under section 161 was also recorded and after completion of the investigation, on 11.05.2011 the charge-sheet was filed under Sections 363, 366-A, 376 (2)(j)(n), 376(3) of I.P.C. and Section 4 5(l)/6 of POCSO Act before the Additional Sessions Judge FTSC, POCSO Act, Bemetara, Dist- Bemetara. The Trial Court has framed charges on 13.05.2022 under Sections 363, 366-A, 376 (2)(j)(n), 376(3) of I.P.C. and Section 5(l)/6 of POCSO Act against the appellant. The appellant abjured his guilt and plead innocent and claimed trial.
5. In order to bring home the charge the prosecution has examined as many as 10 witnesses. The statement of the appellant under Section 313 of Cr.P.C. has been recorded in which he denied the material appearing against him and stated that he is innocent and has been falsely implicated in the case.
6. After appreciation of the evidence adduced by the prosecution, the Trial Court has convicted the appellant and sentenced him as mentioned in para 1 of this judgment hence this appeal.
7. Learned counsel for the appellant is argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. The appellant is innocent and has falsely been implicated in the offence. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of the age. In absence of examination of the author of the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the prosecutrix. No any kotwari register or birth certificate is produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was minor. The 5 ossification report is itself suspicious because the detailed examination was not conducted by the doctor as required for the same and he has opined only that the prosecutrix is below 18 year of the age. There is settled preposition of law that there are two years of margin in either side to determine the age of the prosecutrix.
8. It is further argued by the learned counsel for the appellant that the prosecutrix and the appellant were having love affair and she herself accompanied with the appellant and both of them were resided together for a considerable period in the house of the appellant. Thus, the prosecutrix was a consenting party and no complaint has been made by her to anyone regarding forceful sexual intercourse or any threat. Hence, the offences under IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal.
9. On the other hand, the learned State counsel 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/20(c) which contains the date of birth of the prosecutrix to be 20.09.2007. School admission and discharge register is an admissible piece of evidence to determine the age of the prosecutrix. Further, the ossification test report of ossification test conducted by the doctor proves the facts that the prosecutrix was below 18 years of age on the date of incident and therefore there is no illegality or infirmity in the findings of the 6 learned Trial Court. The prosecutrix was abducted and kept away from the lawful guardianship by the appellant and he has committed sexual intercourse with her without her will and consent and therefore the impugned judgment of conviction and sentences needs no interference.
10. We have heard the learned counsel for the parties, the record and evidence adduced.
11. In order to consider the age of the prosecutrix we have examined evidence available on record produced by the prosecution. The prosecution relied upon the school admission and discharge register Ex.- P/20 (c) which is sought to be proved by the PW-5 Chhunnu Das Chaturvedi who is the Head Master of Govt. Primary School, Daunadih. He stated in his deposition that the Police has seized, the school admission and discharge register with respect to the date of birth of the prosecutrix vide Ex. P/18 and after obtaining the true copy of the same, the original register is returned back to him. The true copy of the said register is Ex. P/20(c). According to him the date of birth of the prosecutrix is recorded in the school admission and discharge register, is 20.09.2007. In cross- examination this witness has admitted that at the time when the prosecutrix has got admitted in the school he was not posted there and he could not say as to who made the entry in the school register, and also on what basis the prosecutrix's date of birth is mentioned in the school register. He further admits that if there would be no document with respect to the date of birth of the 7 students at the time of their admission, their date of birth was mentioned on Gesture.
12. PW-2 the father of the prosecutrix has stated in his deposition that he could not remember the date of birth of his daughter. He has admitted in his cross-examination that the date of birth of the prosecutrix was not registered in the Kotwari Panji and he could not remember the date of birth of his daughter. Further he has admitted that he could not tell the date of birth of his children. He further stated that he has got prepared the Adhar Card of his daughter/prosecutrix but the date of birth of the prosecutrix mentioned in that Adhar Card is wrong.
13. PW-3, the prosecutrix has admitted in her cross-examination that her date of birth recorded in the Adhar Case has also in the school records are different. She further stated that she has stated her date of birth on the basis of the school record.
14. When the prosecutrix herself has stated that her date of birth in the Adhar Chard as well as the school record is different, her father has stated that he could not remember the date of birth of the prosecutrix and there is no registration of her date of birth with Kotwari Panji and further admission of her father that the date of birth mentioned in Adhar Card is different than the date of birth mentioned in her school record, the author of the school admission and discharge register has not been examined by the prosecution and therefore no clinching and legally admissible evidence are available in the case to hold that the date of birth mentioned in the 8 school admission and discharge register is the correct date of birth of the prosecutrix and that the prosecutrix was minor on the date of incident. Under such peculiar facts and circumstances of the case merely relying upon the school admission and discharge register, the determination of the age of the prosecutrix to be minor on the date of incident would not be safe for the appellant.
15. The prosecution has conducted the ossification test of the prosecutrix which has been conducted by Dr. Nil Shayam Thakur (PW-6) who stated in his deposition that since the lower part of ulna bone of the prosecutrix was not fused, on that basis he has assessed the age of the prosecutrix to be less than 18 years. In cross-examination the doctor admits that for want of sufficient hormones and lack of Calcium in the body the ulna bone of the prosecutrix may not be fused. Dr. Nil Shayam Thakur (PW-6) has opined that the prosecutrix is less than 18 years of age. The Hon'ble Supreme Court in the matter of Jay Mala Vs. Home Secretary, Goverment of J & K 982 (2) SCC 538 has absorbed in para-9 that :-
" However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
Considering that the doctor has assessed the age of the prosecutrix on the basis of non fusion of her lower part of ulna bone. In view of the admission of the doctor that the fusion of ulna bone may not takes place due to the hormones and lack of calcium. 9 Therefore, there is every possibility that the prosecutrix may attains the age of 18 years but her physical construction may not have suggest to be that of 18 years. Applying the above said principle laid down by the Hon'ble Supreme Court in Jaya Mala's case (Supra), if the margin of two years is to be taken in positive side then certainly the prosecutrix has crossed the age limit of 18 years.
16. Thus, on the basis of above stated evidence with respect to the age of the prosecutrix, this court is of the opinion that the Trial Court has committed an error in holding that the prosecutrix was less than 18 years of age on the date of incident and was minor on the date of incident.
17. 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."
In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme 10 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.
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 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 11 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."
In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under :
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
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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 12 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.
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 13 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."
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.14
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 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."
18. Reverting to the facts of the present case, after 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 and less than 18 years of the age 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 Trial Court that on the date of the incident, the prosecutrix was minor.
19. 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 Cr.P.C. (Ex.P/14) and her deposition. In her Section 164 Cr.P.C. statement she has stated that she met with the appellant since 2-3 months back at Nawagarh Mela from where they known to each other. They exchanged their mobile numbers and started talking frequently with each other. He expressed his wish that he wants to marry with her. 15 On 17.12.2021 the appellant came to the house of the prosecutrix, taken her to Manpur by his Moter Cycle, from Manpur both of them went to Raipur by Bus and from Raipur to Bhopal by Train. At Bhopal, both of them were resided in the house of the father of the appellant. After 10-15 days, they went to pune and used to earn their livelihood where they were residing at Bramha building, Vijay Nagar. The appellant made forceful physical relation with her twice and while they were residing at Pune, the police has taken them back to their village. In her deposition, the PW-3 Prosecutrix has deposed that from the time of Dussehara Mela of last year, she used to talk with the appellant through mobile phone. On 18.01.2022, the appellant taken her to his Sister's house at Village Manpur where he made forceful physical relation with her and taken her to Bemetara and thereafter from Bemetara to Raipur by Bus and from Raipur to Bhopal by Train. They resided together at Bhopal for about 10-15 days along with the parents of the appellant and there also the appellant has made forceful physical relation with her. On the say of his parents, the appellant taken her to Pune where the appellant's brother was resided. At Pune, the appellant used to go for work along with his brother and she was stayed in his house along with the children. She resided at Pune for about 1-2 months. During the Navratri, she had talked to her parents through the mobile phone of the appellant thereafter the Police came to Pune and taken them back to their village. In cross-examination, the PW-3 if denied the fact that the appellant has taken her along with him from her school. She admitted that she had not stated before the Police that the 16 appellant has made forceful physical relation in the house of his sister at village Manpur. She denied the fact that she has not disclosed before the Police that the appellant has made forceful physical relation at Bhopal and said that she disclosed this fact to the Police and if it is not written in her statement then she could not know the reason. She has further admits the fact that while going from Nawagarh to Bemetara, from Bemetara to Raipur and from Raipur to Pune, the number of persons were met with her but she had not made any complaint to any of the persons who met her on the way. The father of the prosecutrix (PW-2) have stated in his deposition that when the prosecutrix returned back then she disclosed that the appellant has taken her to Raipur to celebrate the birth day and thereafter to Bhopal and from there to Pune. The appellant has not performed Marriage with her but had made physical relation with her. These facts have not been disclosed by him to the Police. The mother of the prosecutrix has not been examined.
20. From the evidence laid by the prosecution, it is clear that the prosecutrix had stayed along with the appellant at Bhopal and Pune for a considerable period and during which the appellant has made physical relation with her. Had it been the same was a forceful physical relation or against the will or consent of the prosecutrix, she would have informed the person who made on the way while traveling to Bhopal and to Pune and while staying at Pune to inform any person of the vicinity where they were residing. It appears that 17 she was engaged in making consentual physical relation with the appellant when she went and stayed along with him. Since, it is held that the prosecutrix is not below the 18 years of age, she is capable to give her consent and therefore it cannot be said that the appellant made physical relation with her without her consent.
21. 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 leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.
22. Considering the evidence available on record, the evidence with regard to age and conduct of the prosecutrix, we are of the opinion that the proseuctrix was more than 18 years of the age at the time of incident and further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case the offences under Sections 363, 366-A, 376 (2)(j)(n), 376(3) of I.P.C. and Section 5(l)/6 of POCSO Act, 2012 would not be made out against the appellant.
23. For the fore going reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 30.01.2023 is set aside. The appellant is acquitted from all the charges framed against him. He is 18 reported to be in Jail since 05.04.2022. He be released forthwith if not required in any other case.
24. Keeping in view the provisions of Section 437-A Cr.P.C, the appellant is directed to forthwith furnish a personal bond in terms of form No. 45 prescribed in the code of criminal procedure for sum of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned which shall be effective for a period of six months along with 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 thereof shall appear before the Hon'ble Supreme Court.
25. 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 Singh)
Judge Chief Justice
Sagrika