Madhya Pradesh High Court
Ramcharan @ Dandu 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.1780 OF 2022
BETWEEN:-
1. RAMCHARAN @ DANDU S/O MANIKRAM.
2. NAVEEN KUMLE S/O FAGULAL KUMLE.
3. ABHINAT @ CHHOTU S/O CHAYANLAL
BHONDE.
ALL RESIDENTS OF KOPE, PS-WARASEONI
DISTRICT BALAGHAT (MP)
..APPELLANTS
(BY SHRI SANJAY SHARMA- ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION WARASEONI DISTRICT BALAGHAT (M.P.)
....RESPONDENT
(BY SHRI S.K.KASHYAP- GOVT. ADVOCATE)
2
Reserved on : 09.05.2024
Delivered on : 18.07.2024
__________________________________________________
JUDGMENT
RAJ MOHAN SINGH, J:
The accused/appellants have preferred the present criminal appeal against the judgment of conviction and order of sentence dated 12.02.2022 passed by the Special Judge (POCSO Act), Waraseoni District Balaghat in Special Case No.27/2020, convicting and sentencing the appellants to undergo R.I. for 10 years with fine of Rs.200/- each with default stipulations under Section 449 of IPC, R.I. for one year under Section 343 of IPC, R.I. for life with fine of Rs.200/-
each with default stipulations under Section 376(d)(b) of IPC, R.I. for life with fine of Rs.200/- each with default stipulations under Section 376(d)(a) of IPC, R.I. for 5 years under Section 506 of IPC, R.I. for life with fine of Rs.200/- with default stipulations under Section 6 of POCSO Act and R.I. for life 3 with fine of Rs.200/- each with default stipulations under Section 4(2) of POCSO Act. These sentences have also been ordered to run concurrently.
2. According to the prosecution, the occurrence took place from 27.10.2019 to 27.4.2020. The prosecutrix/victim (PW-1) was living with her parents in Village Kopey. She studied upto 7th class in Shanti Shishu Niketan School, Waraseoni District Balaghat. Her elder sister Sarita (PW-4) was married in Village Tekadi. Second sister was married in Village Majhapur. She had three brothers. In 2019 on the eve of Diwali, the parents and brother of the prosecutrix/victim went to the matrimonial house of her elder sister Sarita (PW-4) in Village Tekadi on Pooja ceremony. She and her elder brother Lokesh (PW-10) were present at home. At about 6:00 PM, her elder brother Lokesh went somewhere along with his friends and he returned in the night, therefore the prosecutrix/victim did not bolt the door and laid on the cot. At about 8:00 PM in the night, 4 accused Naveen Kumle, Dandu alias Ramcharan Pancheshwar and Chhotu alias Abhinat entered her house. She objected as to why they had come, then one of the accused at once bolted the door from inside and second accused laid upon her. She started crying, then third accused gagged her mouth with a cloth. Two accused persons caught hold of her and all the three turn by turn committed rape upon her. Firstly Naveen Kumle committed rape upon the prosecutrix/victim and thereafter Dandu and Chhotu committed rape upon the prosecutrix turn by turn. They gave Rs.500/- to the victim and told her not to tell the occurrence to anyone, otherwise she would be done to death. By saying that they went away from the spot. The prosecutrix/victim became frightened on account of threat given by the accused persons and did not disclose this fact to anyone. All the three accused as and when found time kept on committing rape upon the prosecutrix by threatening her. About 2-3 months ago, the prosecutrix/victim visited the house of her 5 sister Sarita (PW-4) in Village Tekadi, then the neighbour of her sister accused Vinod Ghajbhiye came to the house of her elder sister and came to know about the factum of rape committed by three accused. Accused Vinod Ghajbhiye also threatened the prosecutrix/victim that in case she does not allow him to make physical relation with him, then he would disclose the factum of rape to all. The prosecutrix/victim got frightened and accused Vinod Ghajbhiye by entering into the house of her elder sister also committed rape upon the prosecutrix/victim many a times. On 27.4.2020, Anusuiya Bai (PW-2), mother of the prosecutrix/victim asked the prosecutrix as to why her stomach was seen enlarged and then she narrated the story to her mother and told that she was pregnant. On coming to know about the story, the mother of the prosecutrix/victim gave information to the police on 28.4.2020 by dialing No.100 and she went to the police station along with the prosecutrix/victim and lodged complaint against the accused persons. Crime 6 No.166/2020 was registered against the accused for the offences under Sections 342, 376(d)(a), 376(3), 376(2)(n), 506, 449 of IPC and under Sections 5(g), 5(j)(ii), 5(l) and 6 of POCSO Act, 2012. After investigation of the case, the report under Section 173 of Cr.P.C. was submitted to the competent Court. The charges were framed to which the accused pleaded not guilty and claimed trial.
3. In order to prove the guilt of the appellant, the prosecution examined 22 prosecution witnesses i.e. PW-1 victim/prosecutrix, PW-2 Anusuiya Bai, PW-3 Yograj, PW-4 Sarita Choudhary, PW-5 Brajlal Choudhary, PW-6 Khilendra Bishen, PW-7 Shailesh Gharde, PW-8 Basant Ramteke, PW-9 Mukesh Patle (Patwari), PW-10 Lokesh Kohare, PW-11 Shubhash Bisen, PW-12 Dr. Rashmi Bhagmare, PW-13 Divya Sharma, PW-14 Dr. Vijendra Choudhary, PW-15 Dr. D.K.Raut, PW-16 Sukhwati Parte, PW-17 Shivan Kokate, PW-18 Preeti Singotiya, PW-19 Umesh Diyewar, PW-20 Geeta Rahangdale, 7 PW-1 Sonali Toke and PW-22 Dr. A.K. Lanjewar. The prosecution also got exhibited the FIR as Ex.P-1, Sonography report of the victim as Ex.P-2, concurrence letter for preserving the blood sample for DNA examination as Ex.P-3, spot inspection map as Ex.P-4 & Ex.P-5, Naksha Najri and spot inspection done by Halka Patwari as Ex.P-6, P-7 & P-8. Statement of the victim under Section 161 of Cr.P.C. as Ex.P-9, statement of mother of the victim as Ex.P-10, statement of father of the victim as Ex.P-11, statement of elder sister of the victim as Ex.P-12, letter prepared under Section 170 of Cr.P.C. as Ex.P-13, statement of brother-in-law of the victim as Ex.P- 14, enclosed letter as Ex.P-15, statement of Shailendra Bisen as Ex.P-16, statement of Shailesh as Ex.P-17, statement of Basant as Ex.P-18, letter in relation to arrest in Ex.P-19 to Ex.P-22, preservation of blood sample of the accused for DNA profile form as Ex.P-23 to Ex.P-26, statement of elder brother of the victim as Ex.P-27, seizure letters Ex.P-28, Ex.P-34, Ex.P-35, 8 Ex.P-36, Ex.P-37, Ex.P-38, Ex.P-39 and Ex.P-46, application for medical examination of the victim as Ex.P-29, application for medical examination of the accused as Ex.P-32 & Ex.P-33, certificate under Section 65-B of the Evidence Act as Ex.P-40, letter issued by the Tahsildar, Lalbarra as Ex.P-41 & Ex.P-42, application given by the Halka Patwari as Ex.P-43, letter issued by the State Forensic Science Laboratory, Sagar dated 30.4.2020 as Ex.P-44, receipt as Ex.P-45, copy of Dakhil Kharij as Ex.P-47C, date of birth certificate of victim as Ex.P- 48, letter issued by the Civil Surgeon, District Hospital, Balaghat dated 16.7.2020 as Ex.P-49, preservation of blood sample of newly born baby for DNA analysis as Ex.P-50 & Ex.P-51, letter dated 16.7.2020 issued by the State Forensic Science Laboratory, Sagar for DNA examination as Ex.P-52 and Sonography Article A-1.
4. As per the statement of prosecutrix/victim (PW-1), she knew the accused Ramcharan alias Dandu, Naveen Kumle, 9 Avinash alais Chhotu but did not know Vinod Ghajbhiye. She studied upto 7th class. She did not know her date of birth. At the time of making statement, she claimed her age to be 14 years. She was living in Village Kopey. Name of elder sister is Sarita Choudhary. She is married. The prosecutrix has three brothers. All brothers are working. The prosecutrix narrated the incident which took place about one year ago on the eve of Diwali. On the fateful night she was alone. her parents had gone to Village Tekadi. Her brother had also gone along with them. Her sisters were married and were living in their in-laws house. Her elder brother Lokesh, aged 18 years had gone with his friends and she was alone at the house and was lying on the cot. Her brother told that he would come back soon, therefore she did not bolt the door, at that time accused Naveen, Dandu and Chhotu entered the room. On being objected, accused Naveen bolted the door from inside. Accused Dandu caught her hands and accused Chhotu caught her legs. Thereafter Naveen 10 committed rape upon her. When she cried, then her mouth was gagged so that she may not cry. The house of accused Naveen was situated in front of the house of the victim. The houses of accused Dandu and Chhotu were situated at some distance. After the rape committed by Naveen, accused Dandu and Chhotu also committed rape upon the victim. They gave Rs.500/- to the victim and told her not to disclose the incident to anyone. They also gave threats to the victim that in case of disclosing the occurrence, she would be done to death. On saying this, they went away from her house. The brother of the prosecutrix/victim came home late in the night. The parents of the victim came in the morning. The victim did not disclose the incident to anyone due to threats given by the accused. The victim did not know accused Vinod. The victim became pregnant. The victim was doing sewing work along with her mother and at that time the mother of the victim asked her as to why her stomach appeared to be enlarged. On this the victim 11 narrated the incident of rape by the accused to her mother. The victim told her mother that she was pregnant on account of rape. Her mother informed the police on telephone. The victim accompanied her mother to the police station and lodged the report in respect of the rape having been committed upon her by the accused. The victim stated that she studied from 1 st class to 4th class in the Government Primary School, Kopey and from Class 5th to Class 7th she studied in Shanti Shishu Niketan, Waraseoni. The victim stated that she gave birth to a female child last year in seventh month and at that time the child was of six months of age. She brought the child in the Court. The victim denied the factum of rape having been committed upon her by Vinod. The victim was found to be hostile qua the complicity of Vinod, and therefore she was allowed to be cross examined on this issue as shown in Ex.P-1. The victim denied the factum of rape having been committed by Vinod. In the cross examination, the victim admitted that she did not make 12 any hue and cry when three accused entered in her room. She volunteered that they caught hold her and gagged her mouth with a cloth. She was trying to get herself freed but did not receive any injury. The accused remained in her house for about 1 to 2 hours. When the accused went away from the house, then she put on her clothes. She did not make any alarm when the accused left the house. Her brother Lokesh returned home at night after 3-4 hours and by that time the victim had slept. She did not wait for arrival of Lokesh. On the next day she woke up at about 8:00 in the morning. She did not do any household work. She did not talk to her brother in the morning. Her parents returned home at about 1-2 PM and at that time her brother Lokesh was not present in the house. She did not disclose anything to her parents due to threats given by the accused. After the occurrence she lived with her parents and brother and was doing household work and also used to bring water from hand-pump. She also used to sit with the known 13 persons in the locality. After the occurrence she was doing routine work. After the occurrence she did not have any monthly period. When she did not have any menstruation, then she told her mother. Her mother went to a doctor at Balaghat and the doctor told her that sometime it happens like that. At that time she did not disclose anything about the rape to her mother nor to the doctor. She told her mother only on the day on which report was made to the police. When she made the complaint, the same was not read by her, because she did not know how to read and she knew only to sign. This witness in her cross examination admitted that on furnishing information, the police came to the village and there was no writing done in the village. The witness further submitted that had she not become pregnant, she would not have made any complaint to the police. During the investigation, she made the complaint against all the three accused persons. She did not tell the police at the time of making statement that she was 14 years of age. 14
5. Anusuiya Bai, mother of the prosecutrix/victim has been examined as PW-2. This witness pleaded ignorance about the accused Vinod, nor the same was disclosed to her by the victim. On this aspect the prosecutor was given permission to cross examine her, but the witness did not endorse anything in respect of complicity of Vinod. Sonography of the victim was done in District Hospital, Balaghat. This witness admitted that her daughter took birth to a female child. This witness admitted that she is second wife of her husband. After two years of her marriage, first child took birth. She had six children. The date of birth of first child was not known to her. All her children took birth after gape of 2-2 years. The witness admitted that the victim took birth in Ramtek and after the birth of the victim, her name was not got recorded in Ramtek, rather it got recorded in Village Kopey. She went to the school for recording her name and at that time she did not carry the date of birth certificate of her daughter. She denied the suggestion that 15 the date of birth of the victim was recorded on the basis of approximation, but volunteered that as the date of birth was known to her so the same was recorded. At the time of getting the victim admitted in the hospital, no affidavit or declaration was given in the school. It was wrong that before lodging the report, the victim was treated by any doctor of the village. The witness admitted that all the families of all the accused persons were having grudge against the family of the victim and their family members did not visit the house of the witness. The witness also admitted that they also did not invite them nor visited their houses. They were not on talking terms with each other.
6. Yograj, father of the prosecutrix/victim has been examined as PW-3. This witness pleaded that at the time of visit of police for investigation, he was not present. The victim was taken to Balaghat for investigation and her mother was accompanied her. The police did not enquire anything from 16 him. He did not ask her daughter about the occurrence. The permission was sought to put leading questions to this witness in respect of complicity of Vinod, but he denied the same. He did not visit the police station for giving information to the police in respect of the occurrence. He admitted that his daughter has given birth to a female child, who is six months of age. The occurrence was narrated to him by his wife and not by the daughter. He also denied that the accused had given Rs.500/- to her daughter by giving threats of not disclosing the occurrence to anyone. This witness admitted that he had two wives. The date of marriage with Anusuiya was not known to him. About 2-3 years of marriage, the children took birth from his wife. He had three sons and two daughters, who took birth in Village Kopey. The victim was born in Village Ramtek. He gave information to the Village Kotwar in respect of birth of his children. After 2-3 months of the birth of the victim, they came to the village and gave information to the Village Kotwar. This 17 witness pleaded ignorance as to the date on which information was given to the Village Kotwar regarding date of birth of the victim. This witness pleaded that he gave the age of the victim as 14 years only on the basis of approximation. He further stated that his wife went to the school for getting the name of victim registered. He pleaded ignorance as to the source information on the basis of which the date of birth was got recorded in the school. This witness admitted that he did not disclose anything in respect of his examination-in-chief earlier to the police. The police did not make any enquiry in respect of occurrence from him. This witness admitted that he was disclosing the facts for the first time to the police.
7. Sarita Choudhary, real sister of the prosecutrix/victim has been examined as PW-4. She stated that she knew the accused persons. Her younger sister was 15 years of age. The occurrence took place about 8-9 months ago in Village Kopey. The prosecution was allowed to put questions to 18 the witness in respect of her statements (Ex.P-12 & P-13). In the cross examination this witness had endorsed the same facts as narrated by the prosecutrix/victim and her mother. The witness pleaded ignorance as to whether the police made any enquiry from her or not.
8. Brajlal Choudhary, brother-in-law of the victim has been examined as PW-5. He pleaded ignorance about the occurrence. He came to know about the occurrence only when the accused were brought by the police and he came to know about the pregnancy of the victim when he along with his wife Sarita visited District Hospital, Balaghat and where he came to know about the pregnancy of the victim. The victim told him that Naveen, Ramcharan and Chhotu committed rape upon her. The witness was allowed to be cross-examined on the statements Ex.P-14 and P-15, but he pleaded ignorance. In his cross examination nothing incriminating could be extracted 19 from him. He admitted that he knew the accused persons from the time of his marriage.
9. Khilendra Bisen has been examined as PW-6. The witness was shown the accused through video conferencing. The witness said that he knew Vinod but did not knew the remaining three accused. He knew Brajlal Choudhary, who is resident of Village Tekadi and was married in Village Kopey. The witness had no information regarding the occurrence and the police did not make any enquiry from him. The prosecution was allowed to put questions to this witness on Ex.P-16, but he did not make any admission. The witness was not cross examined by the counsel for the accused. Shailendra Ghardey has been examined as PW-7. The accused persons were shown to the witness through the video conferencing. The witness knew Ramcharan alias Dandu, Naveen and the accused wearing red T-shirt whose name was not remembered. He did not identify the accused Vinod. The accused wearing red T-shirt 20 was Abhinat. His wife Smt. Sunita Shailesh Ghardey was Sarpanch of the Village. He knew the victim and he came to know about the occurrence about one year ago. The witness admitted that the houses of the accused were situated nearby the house of the victim. When the police came to the village, then mother of the victim stated in front of all that three accused had committed rape upon her daughter/victim and her daughter/victim was pregnant. The names of all the three accused were disclosed and thereafter she went to lodge the complaint. The witness was cross examined on the statement (Ex.P-17) but did not admit the same. In his cross examination nothing incriminating could be brought out.
10. Basant Ramateke and Mukesh Patley have been examined as PW-8 and PW-9. In the year 2018 Mukesh Patley was posted as Halka Patwari. He prepared the spot map on the disclosure of the victim. Lokesh Kohre, real brother of the prosecutrix/victim has been examined as PW-10. He did not 21 admit the statement (Ex.P-27) and then he was cross examined on the said issue. This witness admitted that the accused namely Ramcharan alias Dandu, Naveen and Chhotu are of his village. The police did not make any enquiry from him nor he gave any statement to the police. He pleaded ignorance about the accident.
11. Subhash Bisen has been examined as PW-11. He pleaded ignorance about the incident and did not know about accused Ramcharan alias Dandu, Naveen Kumle, Abhinat alias Chhotu and Vinod Ghajbhiye. He was resident of Village Lohara and the police did not seize any register of the school in his presence. He denied that the police in his presence seized one register from Ashok Kumar Rahangdale, Principal and made seizure memo on which he had also signed. He was not cross-examined by the counsel for the accused. Dr. Rashmi Waghmare has been examined as PW-12. She had examined the victim and she was found her to be pregnant. This witness did 22 not give any opinion as to rape. She had prepared two vaginal slides and preserved the pubic hair samples and handed over to the police. She also gave advice about Sonography of the victim. This witness admitted that the victim was never examined by her earlier to this occurrence. At the time of examination of the victim, there was no sign of rape near the private part of the victim. The doctor did not do any proceeding regarding the age determination of the victim, rather she gave suggestion regarding X-ray. This witness admitted that at the time when the victim was examined by her, the victim did not tell anything about gang rape to her and therefore she did not give any exact opinion regarding rape upon the victim. Divya Sharma has been examined as PW-13. She was posted as Patwari. She prepared the Panchanama (Ex.P-7) of the site and also prepared the Naksha Najri (Ex.P-8).
12. Dr. Vijendra Choudhary has been examined as PW-
14. This doctor examined accused Naveen Kumle and found 23 him to be fit to perform sexual intercourse. He prepared two semen slides and also sealed pubic hair and underwear of the accused. He also collected blood for DNA profile of Naveen Kumle and sealed the same. The sealed cover was handed over to the police. He also examined accused Ramcharan and other accused found them to be fit to perform the rape. He also prepared the slides and preserved pubic hair and clothes and also took blood sample for DNA profile. Dr. D.K.Raut has been examined as PW-15. He performed the Sonography of the victim and gave his report. He also admitted that three persons cannot be father of the child. There cannot be three biological fathers of one child.
13. Sukhwati Parte has been examined as PW-16. This witness is a formal witness of investigation, as she was handed over the sealed packets of vaginal slides and other articles of the victim. Shivam Kokate has been examined as PW-17. He was posted as Constable and brought accused Naveen Kumle, 24 Ramcharan alias Dandu, Vinod and Abhinat alias Chhotu to the Civil Hospital, Balaghat for examination. He also brought the sample stuffs of the accused to the Head Constable and also proved the seizure memo. Preeti Singrotiya has been examined as PW-18. On 28.4.2020 she was posted as Sub Inspector in the Police Station Waraseoni and proved the complaint against the accused persons. On the direction of Incharge Police Station Waraseoni, she conducted the investigation by going to Village Kopey and also did other investigation. Umesh Deywar has been examined as PW-19. On 29.4.2020 he was posted as Head Constable in Police Station Waraseoni. This witness was also part of investigation. Geeta Rahangdale has been examined as PW-20. She stated that Shanti Niketan was earlier managed by the Middle School, Waraseoni from 1993. In 2000 her husband Ashok Rahangdale was the Principal of the school, who died on 23.4.2021 due to Covid-19. She was teacher in 2000. After the demise of her husband, she was managing the school and was 25 performing the duty of Principal. This witness stated that she had seen her husband writing and signing during her matrimonial life, therefore she was in the knowledge of his writing and signature. She admitted the signature of her deceased husband on Ex.P-48. In Class-I, the date of admission of the victim was 28.7.2012 and the date of birth was recorded as 1.12.2007. She brought the original Dakhil Kharij/Memo No.3 of 2009. At Sl.No.972, there was entry of the victim in 1 st Class. The date of admission was 28.7.2012 with a date of birth as 1.12.2007. This witness admitted that the original Dakhil Kharij was not certified by the District Education Officer. This witness also admitted that at the time when entry No.972 was made, whether the parents of the victim came to the school or not, there was no such entry in the Dakhil Kharij/Memo. This witness also admitted that in Ex.P-47, there was no declaration form given in respect of birth of the child. At the time of admission of the child, the admission form was to be filled by 26 the guardian. This witness also admitted that there was no detail given as to on what basis the date of birth of the victim was recorded in the school. The witness admitted that there was no entry/birth certificate and Kotwar register of declaration in respect of birth of the child. The certificate as Ex.P-48 was not signed by the witness.
14. Sonali Thok has been examined as PW-21. She was also part of the investigation. Dr. A.K.Lanjwar has been examined as PW-22. The victim along with newly born child was produced before this witness by the Sub Inspector Sonali Thok (PW-21) for DNA profiling. This witness conducted necessary proceedings in respect of DNA profiling of the victim and the newly born child.
15. On the basis of the material on record i.e. the testimony of Geeta Rahangdale (PW-20), the issue as regards the determination age of the victim is to be appreciated on legal parameters.
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16. 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 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 28 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."
17. 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 29 from a duly constituted Medical Board, which will declare the age of the juvenile/child as the case may be.
18. 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 under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
19. 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 30 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 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 31 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.
20. 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 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;
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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
21. 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.
22. With regard to the documents to be provided as evidence, what was provided under Rule 12 of the Rules, 2007 33 has been provided under sub-rule (2) of Section 94 of the Act of 2015 as a substantive provision.
23. 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 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 34 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 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.
35
24. 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 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.
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25. 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, 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, 37 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, 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."
26. 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 38 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 Justice (Care and Protection of Children) Rules, 2016 are silent with regard to presumption and determination of age.
27. 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 39 under the Act, 2000 and Rules, 2007 shall be deemed to have been done or taken under the corresponding provisions of Act of 2015.
28. 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 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.
29. 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, 40 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 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.
30. 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 41 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 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.
42
31. 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 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 43 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, 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.
32. 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 44 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. 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 45 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 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 46 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........"
33. In order to discuss the issue arising out of Section 34 of the POCSO Act as well as Section 94 of Juvenile Justice (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.47
(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."
34. 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 (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 48 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.
35. 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 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 49 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. 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 50 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 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 51 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 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 52 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 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 53 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. 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 54 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 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 55 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 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 56 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 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.
38. 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 57 to the notice of this Court. The Division Bench of this Court while relying upon different precedents negated 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 determined so as to attract presumption under Sections 29 and 30 of the POCSO Act.
39. 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.
40. 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), 58 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 Kumar Gupta's case (supra) P. Yuvaprakash' case (supra) and Manak Chand alias Mani's case (supra).
41. 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.
42. 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 59 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 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 60 of Birth (entries in the School Register) Rules, 1973. These rules are also in consonance with the requirement of law arising of the subject.
43. Perusal of the factual matrix arising out of the statements of witnesses and the legal position, the age of the victim has not been proved conclusively so as to attract the presumption under Section 29 of the POCSO Act. The victim/prosecutrix at the time of rape did not raise any alarm. It was true that her mouth was gagged but soon thereafter when she was released, she did not make any hue and cry nor informed her parents or brother in any manner. The victim/prosecutrix in her cross examination stated that had she not conceived, she would not have made any complaint to the police. The victim/prosecutrix waited till she was found to be pregnant by her mother and did not disclose anything to anyone in respect of commission of rape. Admittedly as per her testimony, she was subjected to rape on the fateful night as well 61 as subsequently by all the three accused repeatedly as and when they found appropriate opportunities. The age of the victim was not determined conclusively with reference to the source information as per the settled principle of law as has been discussed in preceding paragraphs. The DNA report could not be exhibited on record. The Court has relied upon un-exhibited DNA report only on the basis that the same was prepared by the State Forensic Science Laboratory, Sagar. The DNA profiling of the accused could not be exactly done with the child and report was not exhibited. The non-exhibition of the documents ultimately precluded the accused from making any particular stand in respect of their statements under Section 313 of Cr.P.C. No incriminating material in respect of DNA profiling could be put to the accused persons in their statements under Section 313 of Cr.P.C. and the accused could not avail their valuable right to take a particular stand in respect of DNA profiling. The Court has wrongly observed in respect of un- 62 exhibited DNA report that the same was prepared by the State Forensic Science Laboratory, Sagar and therefore the same having been forwarded under Section 293 of Cr.P.C. could be relied by the Court. The Court has lost sight of the fact that the incriminating material was supposed to be put to the accused in their statements under Section 313 of Cr.P.C. and the material not so put cannot be relied against them.
44. It is true that if the major portion of evidence of a witness is found to be deficient and in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused, conviction can be maintained in respect of that person. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict the accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness of material would not ruin it from the beginning to end. The 63 maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a law of caution. No such preposition is involved in the present case. The age of the victim has not been determined conclusively with reference to any source information on record. PW-20 Geeta Rahangdale, teacher of the school holding the charge of Principal after the demise of her husband had specifically admitted that no declaration form was available on record at the time of admission of the child in the first class. No source information in the form of birth entry or Kotwar registrar was found at the time of making entry in respect of date of birth of the victim in the school.
45. In the light of the aforesaid facts, the complicity of the accused persons could not be established. The material witnesses have not supported the allegations of rape by accused Vinod Ghajbhiye. The trial Court has also rejected the initial 64 version as recorded in the prosecution story. For the reasons recorded hereinavbove, the only irresistible conclusion is that the prosecution has miserably failed to bring home the guilt of the accused to the hilt. The paternity of the child could not be established for want of DNA profiling. The age of the prosecutrix/victim could not be established conclusively. The prosecutrix/victim did not report the occurrence to her parents or to the police till her pregnancy was noticed by her mother. The victim/prosecutrix has specifically stated in her statement that had she not conceived pregnancy, she would not have made the complaint to anyone. The prosecutrix/victim was raped by three persons repeatedly and she did not make any hue and cry at any point of time. The totality of facts and circumstances negated the prosecution of the accused persons.
46. For the reasons recorded hereinabove, we hereby accept the present criminal appeal by setting aside the impugned judgment of conviction and order of sentence dated 65 12.02.2022 passed by the Special Judge (POCSO Act), Waraseoni District Balaghat in Special Case No.27/2020. It is directed that if the present appellants are not required in any other case, they be set free from the jail forthwith.
(Raj Mohan Singh) (Vivek Jain)
Judge Judge
18/07/2024 18/07/2024
MANZOOR AHMED
Ansari
2024.07.19 10:43:18
+05'30'