Madhya Pradesh High Court
Chandrabhan @ Bila vs The State Of Madhya Pradesh on 18 July, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 18th OF JULY, 2024
CRIMINAL APPEAL NO.2118 OF 2017
BETWEEN:-
CHANDRABHAN @ BILA, AGED ABOUT 30 YEARS,
S/O VIJAY SINGH RAJPUT, R/O VILLAGE SIRSIRI, P.S.
SAIKHEDA, TAHSIL GADARWARA DISTRICT
NARSINGHPUR (M.P.)
...APPELLANT
(BY SHRI AJAY KUMAR JAIN- ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH STATION
HOUSE OFFICER, POLICE STATION SAIKHEDA
DISTRICT NARSINGHPUR (M.P.)
....RESPONDENT
(BY SHRI A.N.GUPTA- GOVT. ADVOCATE)
2
Reserved on : 06.05.2024
Delivered on : 18.07.2024
__________________________________________________
JUDGMENT
RAJ MOHAN SINGH, J:
The accused/appellant has preferred the present criminal appeal against the judgment of conviction and order of sentence dated 18.05.2017 passed by the 7th Additional Sessions Judge, Gadarwara District Narsinghpur in Sessions Trial No.110/2016, convicting and sentencing the appellant to undergo R.I. for 3 years with fine of Rs.5,000/- with default stipulations under Section 363 of IPC, R.I. for 5 years with fine of Rs.10,000/- with default stipulations under Section 366 of IPC and R.I. for 14 years with fine of Rs.10,000/- with default stipulations under Section 376(2)(n) of IPC for prosecutrix No.1. The aforesaid sentences have been ordered to run concurrently. For prosecutrix No.2, the accused/appellant has also been convicted and sentenced to undergo R.I. for 3 years 3 with fine of Rs.5,000/- with default stipulations under Section 363 of IPC, R.I. for 5 years with fine of Rs.10,000/- with default stipulations under Section 366 of IPC, R.I. for 14 years with fine of Rs.10,000/- with default stipulations under Section 376(2)(n) of IPC and R.I. for 14 years with fine of Rs.10,000/-
with default stipulations under Section 376(2)(i) of IPC. These sentences have also been ordered to run concurrently. For both the prosecutrix, the sentences have not been ordered to run concurrently, rather the same have been ordered to run consecutively, which means that after completion of 14 years of sentence for prosecutrix No.1, the accused/appellant shall have to undergo 14 years of sentence afresh for the misconduct quo prosecutrix No.2.
2. The prosecution story started with the allegations that complainant Khargram Kahar is resident of Sirsiri and does agriculture work. His daughter Pushpa Kahar and niece Babli alias Priyanka Kahar both were sleeping in the Tapariya on 4 their field in 21st January, 2016 night. When the complainant went to the field on 22.1.2016 at 6:00 AM, then both the girls were not found in the field. Both were searched in the village and relatives. During the search, Bila alias Chandrabhan resident of the village was also not found present in the village. On suspicion, the FIR was lodged that Bila alias Chandrabhan had enticed away the daughter of the complainant namely Pushpa Kahar, aged 15 years and niece Babli alias Priyanka Kahar, aged 17 years. The FIR was investigated by the police and after investigation, report under Section 173 of Cr.P.C. was filed. The charges were framed to which the accused/appellant pleaded not guilty and claimed the trial.
3. In order to prove the guilt of the appellant, the prosecution examined 9 prosecution witnesses i.e. PW-1 Got alias Khargram, PW-2 Pushpa, PW-3 Priyanka @ Babli, PW-4 Sarman, PW-5 Manohar Singh, PW-6 Dr. D.P.Kothi, PW-7 Dr. Babita Singh, PW-8 Sanjay Singh Dhurve and PW-9 Purva 5 Chourasiya. After leading prosecution evidence, the statement of the accused/appellant was recorded under Section 313 of Cr.P.C. and the prosecution story was put to him to which he claimed innocence, however he did not lead any evidence in defence.
4. In the testimony of complainant Got alias Khargram as PW-1, he stated that in the house constructed in the field, his parents used to reside. He was living at a place five kilometers from the said house. Both the daughters namely Pushpa and Priyanka alias Babli were living with his parents in the house constructed in the Munar field. On the fateful night, Bila alias Chandrabhan enticed away both the girls. This fact came to be known by the complainant on the next day and he lodged missing report of the girls with the Police Station Saikheda. After one month, both the girls were recovered in Nagpur from the custody of Bila alias Chandrabhan. Both the girls told the complainant that Bila alias Chandrabhan forcibly took them 6 from the house. They told that they were taken to Nagpur and were kept in a room and accused/appellant committed rape upon them. They also told the complainant that they were beaten up by the accused/appellant. Both the girls told the complainant that the accused/appellant was saying that he would sell one of the girls and would keep one with him. The girls also told that the accused/appellant took them from Tapariya constructed in the field in a tractor. Both the girls were medically examined. The police also recovered the tractor. After necessary proceedings, the girls were handed over to the complainant. In the cross examination, this witness admitted that he lodged the report on the basis of suspicion, as the accused/appellant was also not found present in the village. He did not remember the date of birth of Pushpa. The date of birth of Priyanka was also not known to him.
5. Prosecutrix Pushpa has been examined as PW-2. She stated that Priyanka is a daughter of her Taya. She studied 7 upto 5th class. The prosecutrix and her sister Priyanka were doing agriculture work of sugarcane cutting in the field of the accused/appellant. The accused/appellant used to say that he would marry both. Priyanka used to tell accused/appellant Bila alias Chandrabhan that he is already married and has children. On this the accused/appellant used to say he will leave his wife, as his wife used to quarrel with him. After 10-15 days of Makar-Sankranti, the prosecutrix and her sister Priyanka were sleeping in the Tapariya in the field. At about 3:00 AM in the night, accused/appellant Bila alias Chandrabhan came to their Tapariya and enticed them away under the pretext of marrying them in a tractor-trolley. Firstly he took them to Umardha, Vankhedi, Pipariya, Jamsawri Mandir, Bhandara Road and thereafter to Gitti Khadan Nagpur. Accused/appellant Bila alias Chandrabhan committed rape upon the prosecutrix and her sister Priyanka on the way as well as in Nagpur and kept them in Mitti Khadan, Nagpur in a room. He used to commit rape 8 upon them repeatedly and kept them for about one and half months. Thereafter the father of the prosecutrix and her uncle Sarman came along with police at Mitti Khadan, Nagpur and both were taken to Saikheda after getting necessary police proceedings done in Nagpur. Both the prosecutrix told the occurrence to Gumta, Tai of the prosecutrix and mother Parwati. They told the story to their parents and police. The police handed over both the prosecutrix to their parents. Thereafter they were taken to the hospital, where their medical examinations were done. In the cross examination prosecutrix Pushpa stated that they are five brothers and sisters. The eldest is brother Raja, thereafter prosecutrix took birth, thereafter her sister Dilasa took birth and thereafter Anima took birth and Shiva is the youngest brother. The birth of the prosecutrix took place in village Sirsiri. All the brothers and sisters were born in village Sirsiri. Her brother Raja was doing labour work for the last one year. She did not know the date of birth of her elder 9 brother. She also did not know her date of birth as well as dates of birth of her younger brothers and sisters. She admitted that Priyanka alias Babli (second prosecutrix) is elder to her. Priyanka is also having five brothers and sisters. The elder sister of Priyankas is Sushma, thereafter brother Gopal, thereafter prosecutrix Bablil alias Priyanka and younger to her is Dipali and thereafter brother Deva. Her sister Sushma was married about three years ago and she has two children. Gopal is doing labour work for last two years. In the cross examination, this witness though stated that their hands and mouth were tied while taking them to Nagpur and they were confined in a room with full restrictions, however, at the time of recovery of both the prosecutrix, they were recovered from the market, when they were going in the company of accused/appellant.
6. Priyanka alias Babli (second prosecutrix) has been examined as PW-3. She also narrated on the lines as narrated by 10 PW-2 Pushpa. Both the prosecutrix pleaded ignorance about their dates of birth. Pushpa claimed her age to be 15 years, whereas Priyanka claimed her age to be 16 years. Both the girls claimed that they had studied upto 5th class.
7. Sarman has been examined as PW-4, who is father of the second prosecutrix. He also narrated on the lines with that of complainant Got alias Khargram (PW-1). Manohar Singh Chouhan has been examined as PW-5. He stated that he was posted as Principal Teacher in the Government Primary School, Sirsiri. He brought the original Dakhil Kharij Register of the school from 2004 to 2007 at Sl.No.1438 to 1600. Name of Priyanka daughter of Gamta Bai and Shrawan caste Kahar was recorded at Sl.No.1444 with date of birth as 4.9.1999 in the first class. The date of admission was 1.7.2004 and date of leaving the school was 13.6.2011 after completing the 5th class with transfer certificate. Name of Pushpa Kahar daughter of Khargram and Parwati Bai was recorded at Sl.No.1551 with the 11 date of birth 20.1.2001 in the first class. The date of leaving the school was shown to be 10.7.2006 after completing 5th class with issuance of transfer certificate on 14.6.2011. This witness in his cross examination admitted that the entry of Priyanka at Sl.No.1444 had name of father Sarman as Ganpat/Sudha and these names were cut. In the entry at Sl.No.1444, the name of Sarman was not mentioned, rather Shrawan was mentioned. This witness could not state as to whether the father's name of Priyanka was Shrawan and mother's name was Gumta or not. The entries at Sl.No.1444 and 1551 had no mention of Kotwari Kitab/Chowki Register. This witness also admitted that the date of birth of the student was to be recorded on the information of guardian. While recording entry of Sl.No.1444 and 1551 of both the students, whether enquiry was conducted in respect of their dates of birth or not, the witness pleaded ignorance. The entries had no signature of the guardian. The witness also admitted that at the time of making aforesaid entry, he was not 12 posted in the school and he was not in a position to tell as to whether the entries were correctly recorded or not.
8. Dr. D.P.Kothi has been examined as PW-6. He had examined the accused/appellant and found him to be fit to do sexual intercourse. He prepared semen slides and after sealing the same handed over the same to the police. Dr. Babita Singh has been examined as PW-7. She gave a report that on the basis of medical examination, it was found that there was no external injuries on the private part of both the prosecutrix. She prepared the vaginal slides and handed over the same to the police. As per the medical opinion and X-ray of both the prosecutrix Pushpa and Priyanka, the approximate age of Pushpa was found to be 15 to 17 years and that of Priyanka to be 17 to 19 years. Sanjay Singh Dhurve has been examined as PW-8. He did the Nishandehi of the spot and prepared Naksha Najri (Ex.P-10) on the demarcation of the complainant Got alias Khargram. He admitted that both the girls namely Priyanka alias Babli and 13 Pushpa Kahar were recovered from custody of accused/appellant Chandrabhan on 29.2.2016 from Sabji Bajar Main Road Gitti Khadan, Nagpur. This witness investigated the offence and submitted the report under Section 173 of Cr.P.C. with other details. Purva Chourasiya has also been examined as PW-9. She was posted as Station House Officer in Police Station Paloha on 29.2.2016 and recorded the FIR.
9. The age of both the prosecutrix is a material issue to be determined at an initial stage i.e. as to whether the offences in question have been committed by the accused/ appellant or not.
10. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for brevity "Rules, 2007") came into force on 26.10.2007 in exercise of powers conferred upon the Central Government in view of the proviso to sub-section (1) of Section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000). The aforesaid rule prescribes 14 the procedure to be followed in determination of age. Rule 12(3) of the Rules, 2007 is reproduced as under:-
"(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 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 roof of the age as regards such child or the juvenile in conflict with law." 15
11. Perusal of Rule 12(3)(a)(i), (ii), (iii) would indicate that 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 the matriculation or equivalent certificates, if available; and in the absence whereof, the date of birth certificate from the school first attended, and in the absence whereof, the birth certificate from a corporation or a municipal authority or a panchayat. In the absence of either (i),
(ii) or (iii) of Clause (a), the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile/child as the case may be.
12. Rule 12(6) of the Rules, 2007 deals with 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 16 under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
13. The Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity "Act of 2015") came into force on 15.1.2016 as a result of re-enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for brevity "Act of 2000"). It is enacted with a view to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co- operation in Respect of Inter-country Adoption (1993), and other related international instruments. Section 1(4) of the Act 17 of 2015 provides that notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law, (ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection. Vide the aforesaid Act, 2015, the Juvenile Justice (Care and Protection of Children) Act, 2000 has been repealed. Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act.
14. Section 94 of the Act of 2015 provides for presumption and determination of age, which reads as under:-
"(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person 18 brought before it under any of the provisions of this Act (other than for the purpose of giving the evidence) that the said person is a child, the Committee or the Board shall record ere 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 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 19 shall, for the purpose of this Act, be deemed to be the true age of that person."
15. The difference in the procedure under the aforesaid two enactments can be appreciated as under:-
As per the Juvenile Justice (Care and Protection of Children) Act, 2015, in the absence of requisite documents as mentioned in Clauses (i) and (ii) of Section 94(2), there is provision for determination of age by an ossification test or any other latest medical age determination test to be conducted on the orders of the Committee or the Board as per Section 94 of the Act, 2015. Whereas, under Rule 12 of the Rule 2007, in the absence of relevant documents, the medical opinion has to be sought from a duly constituted Medical Board, which would declare the age of the juvenile or child.
16. With regard to the documents to be provided as evidence, what was provided under Rule 12 of the Rules, 2007 has been provided under sub-rule (2) of Section 94 of the Act of 2015 as a substantive provision.
17. Under Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000, where it appears to a competent authority that a person brought before it was a juvenile or the child, then such competent authority put after 20 making an enquiry and taking such evidence as was necessary, record a finding as to juvenility of such person and state the age of such person as nearly as may be. Sub-Section 2 of Section 49 of the Act, 2000 stated that no order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority 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. But, under Section 94 of the Act, 2015, which also deals with presumption and determination of age, the committee or Board has to record such observation stating the age of the child as nearly as may be and proceed with the inquiry without waiting for further confirmation of the age. It is only when the Committee or Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, it can undertake the 21 process of age determination by seeking evidence. Sub-section 3 of Section 94 of the Act of 2015 states that the age recorded by the Committee or the Board to be the age of the person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. Thus there is finality attached to the determination of the age recorded and it is only in case where reasonable grounds exists for doubt as to whether the person brought the Committee or the Board is a child or not, that a process of age determination by seeking evidence is to be resorted to.
18. The Juvenile Justice (Care and Protection of Children) Act of 2015 has repealed Act of 2000, however notwithstanding such repeal, anything done or any action taken under the old Act i.e. the Act of 2000 shall be deemed to have been done or taken under the corresponding provisions of this Act. In view of the aforesaid, Section 111 (2) of the Act of 2015, the action taken under the Act of 2000 and the Rules 22 framed thereunder i.e. Rule of 2007 shall be deemed to have been done or taken under the corresponding provisions of the Act. In case of any difficulty, Section 112 of the Act of 2015 has to be invoked, which provides that if any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, not inconsistent with the provisions of this Act, remove the difficulty. Provided that no such order shall be made after the expiry of the period of two years from the commencement of this Act.
19. Evidently the rules framed under the Juvenile Justice Act, 2000 have to be appreciated in the context of Repealed Act of 2000 by the Act of 2015. Section 6 of General Clauses Act, 1897 is relevant to be quoted in the present context, which provides the effect of repeal. Section 6 of the General Clauses Act, 1897 is reproduced as under:-
"Where this Act, or any [Central Act] [Substituted by A.0.1937, for "Act of the Governor General-in- Council"] or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, 23 unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
(6-A) Repeal of Act making textual amendment in Act or Regulation. Where any [Central Act] [Substituted by A.O. 1950, for sub- Section (1)] Regulation made after the commencement of this Act repeals any enactment by which the text of any [Central Act) substituted by A.O. 1937, for "Act of the Governor General or Council"] or Regulation was amended by the express omission, insertion or substitution of any matter, then, 24 unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."
20. Section 6 of the General Clauses Act only applies to repeals and not to omissions. When the repeal is followed by fresh legislation on the same subject, one has to look to the provision of the new Act i.e. whether the new Act indicates a different intention. Mere absence of a saving clause is not material. If different intention appears, then it shall affect the provision/operation of any enactment so repealed. The procedure to be followed in determination of age was given under the Rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000. There was no substantive provision in the Act, 2000 itself, whereas in the Juvenile Justice (Care and Protection of Children) Act, 2015, Section 94 is a substantive provision dealing, with the issue for presumption and determination of age. The model rules i.e. the Juvenile 25 Justice (Care and Protection of Children) Rules, 2016 are silent with regard to presumption and determination of age.
21. In view of the aforesaid position, particularly when the Central Government has not resorted to any such mechanism to explain, the conflict, if any between the Rule 12 of the Rules of 2007 and Section 94 of the Act of 2015, the construction of both Rule 12 and Section 94 has to be harmoniously construed in the light of the fact that notwithstanding such repeal, anything done or any action taken under the Act, 2000 and Rules, 2007 shall be deemed to have been done or taken under the corresponding provisions of Act of 2015.
22. Section 6 of the General Clauses Act will be attracted in a case of repeal, even if there is simultaneous enactment, unless a contrary intention is gathered from the new enactment i.e. unless a different intention appears, the repeal shall not affect the prior operation of any enactment so repealed 26 and shall not revive anything not in force. Reference can be made to Raiyala Corporation (P) Ltd. Vs. Directorate of Enforcement, (1969) 2 SCC 412 and State of Punjab Vs. Mohar Singh, AIR 1955 SC 84.
23. Normal effect of repealing a statute is to obliterate it from the statute book completely, as if it had never been passed, unless there is a saving clause if any, then repealed statute will lapse and any order passed therein will be a nullity thereafter. Repeal of a statute or a deletion of a provision, unless covered under Section 6(1) of General Clauses Act or a saving provision, totally obliterates it from statute book and the proceedings pending thereunder stand discontinued. Reference can be made to the ratio of Kolapur Canesugar Works Ltd. Vs. Union of India, (2000) 2 SCC 536. Section 6 of the General Clauses Act only applies to enactment and not to omission or rule. The provisions of Section 6 of the Act will not be attracted if contrary intention is clearly expressed in the 27 statement of object or repealed Act. Section 6 of the Act will not be applied in case of omission of rule as well. Reference can be made to Sushila N. Rungta Vs. Tax Recovery Officer, 2018 (14) SCALE 739.
24. If new Act manifests different intention, the application of General Clauses Act stands excluded. Reference can be made to State of Haryana Vs. HPCL, (2017) 9 SCC
463. A simplicity repeal of an enactment, leaves no room for expression of a contrary opinion. However, if followed by a fresh enactment on the same subject, then applicability of Section 6 of General Clauses Act would require examination to see whether it expresses a different intention from the earlier Act. The enquiry would necessitate an examination whether old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them. If different intention is found, then Section 6 will stand excluded. It is a settled principle of law that if the amendment in the Act 28 is procedural and beneficial in nature, then it would have retrospective application. Reference can be made to Trilok Chand Vs. State of Himachal Pradesh, Criminal Appeal No.1831 of 2010, decided on 1.10.2019, Ratanlal Vs. State of Punjab, (1964) 7 SCR 676 and T. Barai Vs. Henry Ah. Hoe, (1983) 1 SCC 177. A statute conferring a benefit in the context of it is to be given a retrospective operation. Commissioner of Income Tax Vs. Vatika Township Pvt. Ltd. (2015) 1 SCC 1 is necessary to be quoted in the context.
25. Since the Juvenile Justice (Care and Protection of Children) Act, 2015 has repealed the Juvenile Justice (Care and Protection of Children) Act, 2000 completely without making any reference to Rules of 2007, therefore, a situation arises whether Rules, 2007 are still in force even after coming into force of substantive provision in the shape of Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015. There is mark difference in Rule 12(3)(a)(i), (ii), (iii) and 29 Section 94(2)(i) of the Act. Under Rule 12 of the Rules, 2007, preference has to be given to the matriculation or equivalent certificates at the first instance and the date of birth certificate from the school will be second preference in the absence of matriculation or equivalent, whereas in Section 94 of the Act of 2015, the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board is the first requirement and in absence thereof, the birth certificate given by the Corporation or a Municipal authority or a Panchayat would be the second preference. The last preference in the Rules of 2007 and the Act of 2015 is determination of age by way of medical opinion/ ossification test etc. The apparent conflict is whether the birth certificate is a condition precedent for examination any other document such as matriculation or equivalent certificate from the Board or not. In the Rules of 2007, the intention was not to appreciate the date of birth certificate at the first instance, 30 whereas in the Act of 2015, the date of birth certificate from the school is a condition precedent for presumption and determination of age. Since Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is a substantive provision, therefore the case law on the subject has to be considered.
26. In Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 the Hon'ble Apex Court had an occasion to consider the question of determination of age viz-a-viz the birth certificate or matriculation certificate in an election matter. The Hon'ble Apex Court after due consideration, discussed Section 35 of the Evidence Act, 1872, which lays down that entry in any public, official book, register or record stating a fact in issue or relevant fact and made by a public servant in discharge of his official duty, specifically enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied. 31 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 to 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. The Hon'ble Apex Court after discussing different precedents, discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material, the entry in the register about the age of the plaintiff was made. The Courts have considered the question of probative value of an entry regarding the date of birth made in the scholar's register in school certificate in 32 election cases. The Courts have consistently held that the date of birth mentioned in the scholar's register of secondary school certificate has no probative unless either the parents are examined or the person on whose information the entry may have been made is examined. The Hon'ble Apex Court in para 14 of the aforesaid judgement has observed as under:-
"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 register must be shown to be made on the basis of information. 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 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........"
27. In order to discuss the issue arising out of Section 34 of the POCSO Act as well as Section 94 of Juvenile Justice 33 (Care and Protection of Children) Act, 2015 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, it would be necessary to produce Section 34 of POCSO Act:-
"34. Procedure in case of commission of offence by child and determination of age by Special Court.-(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the [the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)].
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person."
28. P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC OnLine SC 846 deals with the issue. The Court after analyzing Section 34 of the POCSO Act, the provisions under the Juvenile Justice (Care and Protection of Children) Rules, 2007 and Section 94 of the Juvenile Justice 34 (Care and Protection of Children) Act, 2015 observed that the Courts have to take recourse to the steps indicated in Section 94 of the Juvenile Justice Act, 2015. Section 94(2)(iii) of the Juvenile Justice Act, 2015 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.
29. In the aforesaid case the Hon'ble Apex Court relied upon the ratio of Rishipal Singh Solanki Vs. State of U.P., (2021) 12 SCR 502 and Sanjeev Kumar Gupta Vs. State of UP, (2019) 9 SCR 735, wherein the Court considered the provisions of Juvenile Justice Act, especially the various 35 options in Section 94(2) of the Juvenile Justice Act, 2015 and has held as under:-
"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 v. The State of Uttar Pradesh that:
"Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (1) 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."36
30. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, (2012) 9 SCR 224, the Court ultimately held that school transfer certificate is not acceptable for age determination of victim. The decision in Birad Mal Singhvi (supra) was not brought to the notice of the Court. In Sanjeev Kumar Gupta (supra), the Hon'ble Apex Court after considering the catena of judgments on the subject, appreciated the controversy arising out of conflict and held whether the case is re-approached from stand point of Rule 12 (3) of the Rules of 2007 or Section 94(2) of the Act of 2015. The Hon'ble Apex Court has held that it does not ultimately make any difference to the conclusion. The Hon'ble Apex Court was dealing with the controversy in which the FIR was lodged by the appellant therein under Section 366 of IPC, wherein the allegation was that the appellant received a call from an unknown number and the caller wished to speak to his son, claiming to be his teacher. The appellant's son, who was 13 37 years old was studying in 8th standard in a public school in Shikohabad. After calling back on the number, the appellant's son left the shop after a conversion, never to return. The victim was murdered after demand of ransom. His body was found in a canal. The second respondent in that was arrested during the course of the investigation. On 9.12.2015, the accused filed an application claiming to be a juvenile on the date of the incident under the Juvenile Justice (Care and Protection of Children) Act, 2000. He submitted that on the date of the alleged offence he was sixteen years ten months and eleven days old and he relied on a matriculation certificate issued by the Central Board of Secondary Education (CBSE), Delhi, reflecting his date of birth as 17-12-1998. On 2-7-2016 the Juvenile Justice Board allowed the application of the second respondent/accused and declared him to be a juvenile on the date of the alleged offence. The appellant filed an appeal before the Court of Sessions Judge, Firozabad. On 16-9-2016, the Sessions Judge remanded 38 the case to the Juvenile Justice Board for determination of the age of the second respondent/accused upon medical examination. The Medical Board was constituted and the Medical Board in its report dated 19-11-2016 found that the age of the second respondent was about nineteen years. Aggrieved by the said order of the Court of Sessions, the second respondent filed a revision before the High Court which was dismissed as withdrawn on 4-1-2017. Thereafter the second respondent filed a petition under Section 482 of the Code of Criminal Procedure, which was disposed of by the High Court on 27-4-2017, directing the early disposal of the pending application of the second respondent. On 1-7-2017, the Juvenile Justice Board rejected the claim of juvenility of the accused on the basis of driving license, Adhar card in which the accused/respondent had declared his date of birth as 17.12.1995. The Juvenile Justice Board held that the second respondent was an adult on the date of accident. The second 39 respondent filed an appeal against the order of Juvenile Justice Board before the Courts of Sessions, which was rejected on 2.8.2017 on the basis of decision of the Hon'ble Apex Court in the case of Parag Bhati Vs. State of MP, (2016) 12 SCC 744. The Court observed that credibility and authenticity of the documents depends upon the circumstances of each case and that in a case involving conflicting school certificates, a further enquiry would be required. The Court of Sessions also placed reliance on the decision of the Hon'ble Apex Court in Ramdeo Chauhan Vs. State of Assam, (2001) 5 SCC 714. Against the decision of Court of Sessions, the second respondent filed a criminal revision before the High Court of Judicature at Allahabad. The High Court allowed the revision and declared that on the date of the alleged offence, the second respondent was a minor. Evidently the High Court proceeded to hold the date of birth on the basis of matriculation as per requirement of Juvenile Justice (Care and Protection of Children) Rules, 2007. 40 The appellant preferred a special leave petition before the Hon'ble Apex Court under Article 136 of the Constitution of India. The Hon'ble Apex Court after discussing the catena of judgments including Abuzar Hossain @ Gulam Hossainm (supra), Ashwani Kumar Saxena Vs. State of M.P., (2012) 9 SCC 750, Jitendra Singh Vs. State of UP, (2010) 13 SCC 523, Pawan Vs. State of Uttaranchal, (2009) 15 SCC 259 and Akbar Sheikh Vs. State WB, (2009) 7 SCC ultimately held that Act of 2015 came into force on 15.1.2016. Section 111 repeals the earlier Act of 2000, but stipulates that despite the repeal, anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of the new Act. Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the Examination Board concerned in the same category [namely (i) above). In the absence thereof category (ii) provides for obtaining the birth 41 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)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. 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. The Hon'ble Apex Court despite the fact that occurrence took place on 18.8.2015, and the application claiming the benefit of juvenility was filed on 9-12-2015, proceeded to analyse the facts on the basis of the provisions of the Rules of 2007 and ultimately held that the date of birth recorded in the matriculation certificate was not 42 relied in view of the material available on record i.e. affidavit filed by the CBSE, indicating that the date of birth in the records maintained by the CBSE was recorded purely on the basis of final list of students forwarded by Maa Anjani Senior Secondary School, Etah Road, Shikohabad. The CBSE has stated before the Court that the date recorded in the matriculation certificate was purely on the basis of final list of students forwarded by the Headmistress Maa Anjani Senior Secondary School. The date of birth recorded in the Saket Vidya Sthali completely matched with the date of birth, which was voluntarily disclosed by the second respondent both in the driving license as well as in the Adhar card and the same was found to be 17.12.1995. On the basis of these facts, the Hon'ble Apex Court rejected the application of 2007 Rules and preferred to appreciate the source information recorded in the evidence, which was brought on record in the form of certificate of Saket Vidya Sthali, driving license and Adhar card 43 of the second respondent. In the aforesaid judgment, the Hon'ble Apex Court has harmonized the Rule 12 of the 2007 Rules and Section 94 of the Act, 2015.
31. The aforesaid judgment was not brought to the notice of this Court, when the Division Bench of this Court decided Criminal Appeal No.2630/2015 (Ramswaroop Vs. State of MP), decided on 2.8.2023, though P. Yuvaprakash' case (supra) was brought to the notice of this Court and the same was distinguished, but the earlier judgment of the Hon'ble Apex Court in Birad Mal Shinghvi (supra) was also not brought to the notice of this Court. The Division Bench of this Court while relying upon different precedents distinguished the ratio arising out of P. Yuvaprakash's case (supra) and even discussed the Rules 2007 being procedural in nature. The entry in the school register was held to be of probative value. The entry in the school record was given precedence and the age of the prosecutrix was found to have been conclusively 44 determined so as to attract presumption under Sections 29 and 30 of the POCSO Act.
32. The view expressed in P. Yuvaprakash' case (supra) has been re-affirmed by the Hon'ble Apex Court in Manak Chand alias Mani Vs. State of Haryana, 2023 SCC OnLine SC 1397 in which ratio of Birad Mal Singhvi (supra) has been relied.
33. In view of the aforesaid legal position, the latest judgment of the Hon'ble Apex Court is in consonance the earlier view expressed in Birad Mal Singhvi' case (supra), which was duly relied in P. Yuvaprakash' case (supra). Therefore, on the subject in issue, the applicability of Section 94 of the 2015 Rules has to be given precedence over the Juvenile Justice (Care and Protection of Children) Rules, 2007 by harmonizing both the rules and substantive provision and also in view of Birad Mal Singhvi' case (supra), Sanjeev 45 Kumar Gupta's case (supra) P. Yuvaprakash' case (supra) and Manak Chand alias Mani's case (supra).
34. In view of the aforesaid legal position, the controversy in question with regard to application of Juvenile Justice (Care and Protection of Children) Rules, 2007 viz-a-viz substantive provisions under Section 94 of the act, 2015 is no more res integra.
35. In view of M.P. Date of Birth (entries in the School Register) Rules, 1973, on the issue of the declaration of age, the instructions have been provided that the parents or the guardians seeking admission for his ward for the first time into an approved or recognized school shall declare in writing in the form appended to these rules, the date of birth of the ward concerned and submit the same duly signed by him to the head of the institution. In case of an illiterate persons, the declaration shall bear the thumb impression of the parent or the guardian attested by a responsible literate person other than a teacher of 46 the school to which admission is sought. The date of birth of the ward in the declaration shall be given according to the date, month and year of the British Calendar. Where it is not possible for the parent or the guardian to submit the requisite declaration personally, he may authorize a person in writing to do so on his behalf. The aforesaid rules have been brought into the fact keeping in view the percentage of population, wherein requiring a birth certificate from Kotwar, civil surgeon and municipal authority is not feasible and that is how the rules have been made to facilitate such illiterate person to make declaration in the manner as suggested in Rule 3 of M.P. Date of Birth (entries in the School Register) Rules, 1973. These rules are also in consonance with the requirement of law arising of the subject.
36. As per the testimony of PW-5 Manohar Singh Chouhan, the age of the prosecutrix namely Pushpa and Priyanka have not been conclusively determined with reference 47 to any source information. The witness has admitted that both the entries at Sl.No.1444 and 1551 have no source information as to whether an enquiry was made at the time of recording these entries. There were no signatures of the guardians at the time of recording of these entries. The witness was not posted in the school when these entries were made in the school record. In view of the law laid down by the Hon'ble Apex Court in the case of Birad Mal Singhvi (supra), Sanjeev Kumar Gupta (supra), P. Yuvaprakash (supra) and Manak Chand alias Mani (supra), the age of both the prosecutrix have not been conclusively determined with reference to any source information available in the school record. Both the prosecutrix were subjected to ossification/radiological tests, where the age of Pushpa was found to be 15 to 17 years and age of Priyank was found to be 17 to 19 years. The ossification test is not a sure test. There would be a variance of two years on both sides.
48
37. In view of the aforesaid position, both the prosecutrix could have been treated to be major on the basis of ossification test. They remained in the company of accused/appellant for more than one and half months. They were taken to Nagpur after crossing different places namely Umardha, Vankhedi, Pipariya, Jamsawri Mandir, Bhandara Road and thereafter to Gitti Khadan Nagpur. Both the prosecutrix had ample opportunities to make hue and cry at all these places, but they have tried to introduce a plea that their hands and mouth were tied throughout the journey and were released only at the time of taking meal and at the time of answering call of the nature. During the cross examinations, both the prosecutrix have faltered and admitted that these facts were not disclosed earlier and were made part of their statements recorded in the Court only and that too on the asking of the Advocate.
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38. In view of the conduct of both the prosecutrix, they are found to be consenting parties. They readily left the place in the tractor of the accused/ appellant in odd hours i.e. in the midnight. Being the age of around 18 years, they could have repelled misdeeds of the accused/appellant. It was not the case of the prosecution that the accused/appellant was armed with any weapon at the time of taking both the prosecutrix. Both the prosecutrix left their Tapariya of the field in the tractor of the accused/ appellant and crossed so many places without making any alarm. They were recovered from a public place i.e. Sabji Mandi Mitti Khadan, Nagpur and at that time they were not having their hands tied and face muffled with any cloth. Looking to the conduct of both the prosecutrix, it can be concluded that they were consenting parties. The conduct of the accused/appellant was also not above boards being a married man having children. He was involved in this unethical affair. The ingredients of offences under Sections 363, 366, 376(2)(n) 50 and 376(2)(i) are not attracted in the present case, as both the prosecutrix are found to be major on the basis of ossification tests. The age of both the prosecutrix could not be determined conclusively in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The determination of age on the basis of medical tests i.e. ossification/radiological test is always having variance of two years on both sides. If two views are possible, then the view favouring the accused is to be adopted.
39. For the reasons recorded hereinabove, since both the prosecutrix are found to be consenting parties, therefore the accused/appellant is entitled to be acquitted of the charges. Accordingly, we hereby accept the present criminal appeal by setting aside the impugned judgment of conviction and order of sentence dated 18.5.2017 passed by the 7th Additional Sessions Judge, Gadarwara District Narsinghpur in Sessions Trial No.110/2016. It is directed that if the present appellant is not 51 required in any other case, he be released from the jail forthwith.
(Raj Mohan Singh) (Vivek Jain)
Judge Judge
18/07/2024 18/07/2024
MANZOOR AHMED
Ansari
2024.07.19 11:32:38
+05'30'