Jashpur, Chhattisgarh v. State Of Chhattisgarh Through The Station House Officer, Police Station Kansabel
Case Details
1 2025:CGHC:7841 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 106 of 2020 Ashok Xalxo S/o Jogi Xalxo Aged About 22 Years R/o Village Gharjiyan Bathan (Badopara), Police Station Patthalgaon, District Jashpur, Chhattisgarh., District : Jashpur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Kansabel, District Jashpur, Chhattisgarh., District : Jashpur, Chhattisgarh (Cause title taken from Case Information System) ... Respondents For Appellant For Respondent/State : : Mr. J.K. Saxena, Advocate Mr. R.C.S. Deo, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 13/02/2025 1. The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973, against the impugned judgment of conviction and sentence dated 04.01.2020, passed by learned Special Judge (Protection of Children from Sexual Offences Act, Digitally signed by VEDPRAKASH DEWANGAN 2012) Jashpur, Chhattisgarh, in Special Criminal Case under the 2 POCSO Act No. 35 of 2018, whereby the appellant has been convicted and sentenced in the following manner: Conviction Sentence U/s. 363 of IPC U/s. 366 of IPC U/s. 376(2)(i) of IPC R.I. for 02 years and fine of Rs. 500/-, in default of payment of fine further R.I. for 01 month. R.I. for 03 years and fine of Rs. 1000/-, in default of payment of fine further R.I. for 03 months. R.I. for 10 years and fine of Rs. 1000/-, in default of payment of fine further R.I. for 03 months. All the sentences are directed to be run concurrently 2. The brief facts of the case are that, on 12.09.2018, at about 4:50 PM, when the victim/PW2, was returning from her school towards Madhuvan Jungle, the appellant came there by his motorcycle, introduced himself as he is the brother of her friend, and took her with his motorcycle to visit places. At that time, his friend/DW1 was also accompanied with them and after some distance, he got down from the motorcycle, and then the appellant took the victim to village Raghunathpur in the house of his maternal grandmother. In the night, he committed rape upon her, and on the next morning, he left her at Kansabel Bus Stand, and went away from the place. The victim came back to her house, and informed the incident to her parents, and had gone to Jeevan Jharna Samiti, along with her father. On 16.09.2018, the father of the victim/PW3, lodged a written complaint (exhibit P6) to the police about the incident. Based on the
Facts
written complaint, the FIR/Exhibit P7 was registered against the 3 appellant for the offence under Sections 363 and 376 of IPC and Sections 3 and 4 of POCSO Act. The victim was sent for her medical examination to Community Health Centre, Kansabel, where she was
Legal Reasoning
"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined 9 at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 10 12. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. xxxx xxxx xxxx 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the 33 Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination 11 of age as per sub- section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hyper. technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, Inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility 12 than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the 33 Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." 13. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under: "14, Section 94 (2)(iii) of the 33 Act clearly Indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, l.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the 13 transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been. fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2) (i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (1) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the 14 juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3) (a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(1) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted In order of preference." 15 14. Reverting to the facts of the present case, the victim/PW2 has stated in her evidence that she is aged about 14 years. She did not disclose the date of birth in her evidence. 15. PW3, father of the victim, has also not disclosed any date of her birth and stated that she is aged about 14 years. When there is no specific date of birth stated by the witnesses and the school register has not been proved in accordance with law, it cannot be said that the prosecution is able to prove that the victim was minor on the date of incident, yet the learned trial Court has held her minor. 16. So far as the offence of kidnapping and rape are concerned, I again examine the evidence led by the prosecution. 17. The victim/PW2 has stated in her evidence that on 12.10.2018, when she was returning from the school, on the way, the appellant met her and took her towards Raghunathpur by his motorcycle. He kept her at village Raghunathpur in her maternal grandmother's house and has made physical relation with her. On the next day, he left her at Kansabel bus stand and thereafter she returned back to her house. In cross-examination, she admitted that the place from where the appellant took her with him is the main road and busy place and number of persons were visited around. She stated that she has not raised any alarm when the appellant had come to her and taken her with him. Up to the village Raghunathpur, she has not made any complaint to anyone and had not shouted for help. Even it is not stated by her that in the night at village Raghunathpur, when the appellant has made physical relation with her, she in any manner 16 protested or tried to come out from the clutches of the appellant or even she has given any nail scratch mark or teeth bite on the body of the appellant. She further stated that she has not disclosed about any incident to the maternal grandmother of the appellant nor any of her family members. From the evidence of the victim, it does not disclose that the appellant has committed any forceful act with her and it appears that she was engaged in making consensual physical relation with the appellant. The evidence of the victim cannot be put into the quality of a sterling witness on which the conviction can be upheld. 18. PW3, the father of the victim, has stated that when the victim returned back to her house, she informed about the incident and then they had gone to Jeevan Jharna Sanstha, Kansabel and informed the incident to them, from where they have got a written report (exhibit P6) which has been lodged by him to the police station. When the victim herself has not stated about any protest and found the consenting party in making sexual relation with the appellant, the evidence of PW3 is having no much relevance as he has been informed by the victim about the incident. 19. PW6, Dr. Rosa Toppo, who medically examined the victim, has not found any external injuries or even any sign of struggle has been found on her body. Although in the FSL report (exhibit P-30), the semen and sperm were found on the vaginal swab of the victim, but in the facts of the present case that she was engaged in making consensual physical relation with the appellant, the presence of 17 semen and sperm on her vaginal swab does not have any adverse effect on the defence of the appellant. 20. DW1 is the person, who initially accompanied with the appellant and the victim and after some distance he got down from the motorcycle. He too has not stated that at the time when the victim was going with the appellant, she was protested or the appellant has forcefully taken her with him. Rather, it appears from his evidence that the victim on her own will had gone with the appellant without raising any objection. 21. DW2 is the person, who informed the father of the victim that the victim was found at village Kilkila. 22. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has held that: "9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the 18 house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". 23. From the evidence of the victim as well as DW1, it is quite apparent that the victim, who is a major girl herself had gone with the appellant on her own will, which does not come under the offence of kidnapping. She being a major girl, having engaged in making consensual physical relation with the appellant without any objection or protest, the act of the appellant does not come under the offence of rape, as it was the consensual physical relation between the appellant and the victim. 24. Consequently, the appellant is entitled for benefit of doubt and thereby the appeal filed by the appellant is allowed. The impugned 19 judgement of conviction and sentence is hereby set aside and the appellant is acquitted from all the offences. 25. The appellant is reported to be in jail since 24.09.2018. He be released forthwith, if not required in any other case. 26. Registry is directed to transmit the trial Court record along with a copy of this order to the Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved
Arguments
being medically examined by Dr. Smt. Rosa Toppo/PW6, who, after her medical examination, gave report/Exhibit P12. While examining the victim, the doctor has not noticed any external injuries on her body, and opined that she is not suffering from sexual intercourse. For confirmation of her age, she advised for X-ray report. Two slides of her vaginal smear were prepared, sealed, and handed over to police for its chemical examination. The recovery Panchanama/Exhibit P1 was also prepared by the police on 16.09.2018. Spot map (Exhibit P2 and P4) was prepared by the police and Exhibit P18 was prepared by Patwari. With respect to the date of birth and age of the victim, the police has seized the school register from Deen Palika Primary School, Kansabel vide seizure memo/Exhibit P9, and after retaining the attested copy of the school register/Exhibit P15C, the original register, was returned back to the school. The appellant was arrested on 24.09.2018 and he too was sent for his medical examination to Community Health Centre, Kansabel, where he was being examined by PW9/Dr. Sunil Kumar Xess, who gave his report/Exhibit P20, and found the appellant to be capable to perform sexual intercourse. The vaginal slide of the victim was sent for its chemical examination to Regional FSL, Ambikapur, from where report/Exhibit P30 was received, and according to the FSL report, semen and sperm were found in the vaginal slide of the victim. 4 Statements under section 161 of CRPC of the witnesses have been recorded. Statement of the victim under section 164 of CRPC has also been recorded, and after completion of usual investigation, charge sheet was filed against the appellant for the offence under sections 363, 366 and 376 of IPC, and sections 3 and 4 of POCSO Act, before the learned trial Court. The learned trial Court has framed charge for the offence under sections 363, 366 and 376(2)(i) of IPC, and section 4 of POCSO Act. The appellant denied the charge and claimed trial. In order to establish the charge against the appellant, the prosecution has examined as many as 12 witnesses. Statement of the appellant under section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. Two defence witnesses have been examined by the appellant in his defence. After appreciation of oral as well as documentary evidence, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgement. Hence this appeal. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. There is no cogent and clinching evidence with respect to age and date of birth of the victim that on the date of incident she was minor and less than 18 years of age. The school register 3. 4. 5. 6. 5 produced by the prosecution has not been proved in accordance with law and there is no other evidence like kotwari register, birth certificate or ossification test report produced by the prosecution. He would further submit that the victim is a major girl having love affair with the appellant and she herself eloped with him without raising any objection and she engaged in making consensual physical relation with the appellant. She has not protested and there is no injuries found on the body of the victim. She being the consenting party and eloped with the appellant on her own free will, no offence of either kidnapping or the rape are made out against the appellant and he is entitled for acquittal. 7. On the other hand, learned counsel for the State opposes the submissions made by the counsel for the appellant and has submitted that but for minor omissions or contradictions the evidence led by the prosecution are fully reliable and conviction can be made on the basis of the evidence available on record. The school register has been proved by PW7, who is the Headmistress of the school and according to the school register the victim was minor on the date of incident. She was not able to give her consent in making physical relation with the appellant. She was being taken by the appellant and kept away from her lawful guardianship, which constitutes the offence of kidnapping and rape. Even if no injuries were found on the body of the victim that alone is not sufficient to discredit the evidence of the prosecution witnesses, as in every case there is no necessity that the victim must have received injuries on her body. Therefore, there are sufficient materials available on record to hold conviction of 6 the appellant in the alleged offence and his appeal is liable to be dismissed. 8. 9. I have heard learned counsel for the parties and perused the record of the case. The first question arises for consideration would be the age of the victim as to whether she was minor on the date of incident or not ? 10. The prosecution has mainly relied upon the school register/exhibit P15C, which is sought to be proved by PW7, who is the Headmistress of the school. She stated in her evidence that the police has seized the school register from him with respect to the date of birth of the victim. After retaining the attested true copy of the school register, the police has returned back the original register to the school and she brought the original register with her. The original register is exhibit P15 and its attested true copy is exhibit P15C. According to the school register, the date of birth of the victim is 24.02.2004. In cross examination, she admitted that the entries made in the school register is not in her own handwriting. She also admitted that the basis on which the entries have been made with respect to the date of birth of the victim in the school register, is not there in the school register. She also did not know as to who has taken her for her admission in the school. From the evidence of this witness, it is quite vivid that she is not the author of the school register nor the basis on which the 7 entries have been made with respect to the date of birth of the victim, has been produced by the prosecution. 11. The admissibility and evidentiary value of the school register has been considered by the Hon’ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385. In Para 40, 42, 43, 44 and 48 of its judgment, the Hon’ble Supreme Court has observed as under: "40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of 8 the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in Issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:-