1 - Bhanupratap Yadav S/o Bharat Yadav Aged About 23 Years R/o Village Kutra v. 1 - State Of Chhattisgarh Through Police Station Pamgarh, District Janjgir- Champa, Chhattisgarh
Case Details
1 2025:CGHC:6030-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 224 of 2021 1 - Bhanupratap Yadav S/o Bharat Yadav Aged About 23 Years R/o Village Kutra, Police Pamgarh, District Janjgir- Champa Chhatitsgarh ... appellant versus 1 - State Of Chhattisgarh Through Police Station Pamgarh, District Janjgir- Champa, Chhattisgarh ... Respondent(s) For Petitioner(s) For Respondent(s) : : Mr. Amit Singh Chauhan, Advocate Mr. Sakib Ahmad, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 03.02.2025 1. The present criminal appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 25/01/2021 passed by learned Special Judge (Protection of Children From Sexual Offence) Act, 2012, Dist- Janjgir-Champa (C.G.) in Special Sessions Case No. 14/2020 whereby the appellant has been convicted and sentenced as below:- 2 S.No. Conviction Sentence 1. Under Section 363 of IPC R.I. for 03 years and fine of Rs. 500/- in default of fine additional R.I. for 1 month. 2. 3. Under Section 366 of IPC R.I. for 5 years and fine of Rs. 500/- in default of payment of fine additional R.I. for 1 month. Under Section 06 of POCSO R.I. for 20 years and fine of Rs. 1000/-, in Act. default of payment of fine further R.I. for 2 months (All the sentences shall run concurrently)
Facts
2. Brief facts of the case are that on 21/06/2019, the victim (PW/1) has lodged a written complaint to the Police (Ex-P/1) with the allegation that in the month of January, 2015, she was being allured by the appellant on the pretext of marriage and took her with him to Jammu where he made physical relation with her by which she conceived pregnancy and delivered a male child in the month of April, 2016. After 7 days of birth of her child, he left her alone there and returned back to his Village- Kutara and now he disowned her and refused to keep them with him. On the basis of written complaint made by the victim, the Police has registered the case under Section 363, 366 and 376 of IPC vide Ex-P/2 against the appellant. The victim was sent for her medical examination to community health centre, Pamgarh where she was medically examined by PW-5 Dr. R. Dahire, who after her medical examination, gave report (Ex-P/11). While medical examination of the victim, no external injuries have been found on her body and opined that no evidence have been found of recent intercourse. Two slides of her vaginal swabs were prepared, sealed and handed over to the Police for its chemical examination. Her social status certificate has also been seized vide seizure memo (Ex-P/4). Primary school mark- 3 sheet of the victim as well as the birth certificate of the victim has been seized by the Police vide seizure memo (Ex-P/5). Spot map (Ex-P/7) was prepared by the Police and (Ex-P/8) was prepared by the Patwari. With respect to the age and date of birth of the victim, the school register has been seized vide seizure memo (Ex-P/9) and after retaining the attested true copy of school register (Ex-P/9c), the original register was returned back to the school. The appellant was arrested on 19/07/2019 and he too was sent for his medical examination to the Community Health Centre, Pamgarh, where Dr. Sourabh Yadav (PW/7) has examined him and gave his report Ex- P/12 by which the appellant was found to be capable to perform sexual intercourse. The blood sample of the appellant, victim as well as their child were collected and sent for DNA report to State FSL, Raipur, from where DNA report (Ex-P/23) was received and according to the DNA report, the appellant was found to be biological father of the male child delivered from the victim. Statement under Section 161 of Cr.P.C. of the witnesses as well as Statement under Section 164 of Cr.P.C. of the victim have been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under Sections. 363, 366 & 376 of IPC & under Section 4 and 6 of POCSO Act and Section 3 (2)(v) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, (in short SC/ST Act) before the learned trial Court. 3. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 366, 376 of IPC and Section 6 of POCSO Act and Section 3 (2)(v) of SC/ST Act. The appellant abjured his guilt and claimed trial. 4 4. In order to prove the charge, the prosecution has examined as many as 13 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the material appears against him, plead innocence and submitted that he has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in Para-1 of this judgment. Hence this appeal.
Legal Reasoning
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 Purohit1, 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 the documents Exs. 8, 9, 10, 11 and 12 would not 7 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 Jaiswal2, where this Court observed as follows:- "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 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 regardto the provisions of Section 35 of the Evidence Act will have to apply the 8 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 victim 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." 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 XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, 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 9 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 record and has to be on the basis of the material on on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the 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. 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 : 10 "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 11 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 fromthe school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference." 14. Reverting to the facts of the present case, the victim has stated in her evidence that her date of birth is 13.07.2000, the incident is of the year 2015 and at that time she was the student of Class-9. In cross- examination, she stated that she was got admitted in the school by her maternal uncle. In the present case her maternal uncle has not been examined to prove, the basis on which he got recorded the date of birth of the victim in the school. 15.PW/2, the mother of the victim has stated in her evidence that she could not know the date of birth of the victim but she is presently aged about 18 years. The incident was occurred 3-5 years back. She too has stated in her cross-examination that her brother has got her admitted 12 in the school. At that time, her brother has not taken any birth certificate of the victim. The mother of the victim did not know the date of birth of the victim, there is no documentary evidence like birth certificate or ossification test report of the victim and her maternal uncle of the victim has not been examined, the school register is also not proved in accordance of law, it cannot be said that the prosecution is able to prove that the victim was minor and less than 18 years of age on the date of incident. 16. So far as, the offence of kidnapping, procuring a minor girl for illicit intercourse and the offence of rape are concerned, we again examined the evidence of the victim (PW/1). 17. The victim has stated in her evidence that, she knew the appellant since the time when she was studying. He allured her that he wanted to marry with her. He took her to Jammu by train. Near Kathwa at Jammu, they were residing as husband and wife and resided there for about 1 and half year. She conceived pregnancy from the appellant and gave birth of a male child at Kathwa hospital. After about 7 days of birth of her child, he left her alone and came back to his village. After about 10-15 days, she too has returned back to village and she has gone to the house of the appellant, his family members refused to accept her and thereafter, she went back to her parents house. She again went to Parashpura, Shri Nagar along with her parents and tried to search of whereabouts of the appellant but she could not found him and then, she lodged the report which is Ex-P/1. The Police has taken their blood samples and conducted DNA test. In cross-examination, she admitted that she and the appellant belongs to the different caste. She 13 further admitted that she was in love affair with the appellant and had gone to Bilaspur by bus along with the appellant. From Bilaspur, they proceeded by train. She further admitted that while residing with the appellant, she made physical relation with him on her own will and they were residing happily. 18. PW/2, the mother of the victim has stated that about three years back, her daughter was being kidnapped by the appellant who took her to Kathwa. Her daughter has given birth to a child who is from the appellant side and thereafter, he left her alone there and came back to his village. Since, the father of the appellant had given them the assurance that they will keep her with them and therefore, they could not lodged any report against the appellant. In cross-examination, she too have admitted that her daughter was having love affair with the appellant and she herself had gone with him on her own will. When the appellant left her daughter at Kathwa and came back to his village. She had gone to lodge the report at Jammu-Kashmir but the Police has not lodged her report. 19. From this evidence, when the victim is not proved to be minor and when the victim as well as her mother have stated in their evidence that the victim herself had gone with the appellant to Jammu by train, without raising any objection, the victim was having love affair with the appellant and despite that the appellant left her at Village- Kathwa, Jammu, she returned back to her parents house and again went to Shri Nagar for searching the appellant and then the report has been lodged against him, it cannot be safe to hold that the victim was being kidnapped by the appellant and he procured the minor girl and 14 committed rape upon her. The victim was found to be major on the date of incident and she herself on her own will went with the appellant and made sexual relation with him by which she gave birth to a child. From the DNA report (Ex-P/23), the appellant is found to be biological father of the child born from the victim. There is no forceful act committed by the appellant and no objection has been raised by the victim when she was traveling up to Jammu by train and even while residing at Jammu. She has not made any complaint or raised any objection and therefore, it cannot be said that she was not the consenting party in making physical relation with the appellant. 20.The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 21.From the evidence led by the prosecution and the judgment passed by the Hon’ble Supreme Court, we are of the considered view that the prosecution has failed to prove his case beyond reasonable doubt that the victim was being kidnapped / abducted by the appellant and kept away from her lawful guardianship and has made forceful sexual intercourse with her. The victim being a major girl, went along with the appellant on her own will and stayed 15 with him at Jammu and has made physical relation with him which amounts to consensual physical relation by the victim with the appellant and therefore the alleged offences are not made out against the appellant. 22.In the result the appeal is Allowed. The judgment of conviction and sentences passed against the appellant are set aside. The appellant is acquitted from all the charges. The appellant is reported to be in jail since 19/07/2019. He be released forthwith if not required in any other case. 23.Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Bhanupratap Yadav is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 24.The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.03.03 10:52:27 +0530
Arguments
6. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the offence. No offences are made out against the appellant as alleged. The prosecution has failed to prove its case beyond reasonable doubt. There is no legally admissible evidence produced by the prosecution with respect to the age of the victim so as to hold that on the date of the incident she was minor and below 18 years of age. Although, the School Register of the victim was seized by the Police but in absence of examination of its author, the same cannot be taken into consideration for determination of the age of the victim. No any Kotwari Register, Birth Certificate or Ossification Test report have been filed by the prosecution to hold that the victim was minor on the date of incident. He would further argue that the victim being a major girl, has voluntarily went along with the appellant and made physical relation with him on her own will. In view of the age and conduct of the victim and also the nature of allegation leveled against the appellant, the alleged offences are not made out against him and he is entitled for acquittal. 7. On the other hand, learned State counsel opposes the argument 5 advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case by leading evidence that on the date of incident the victim was minor and less than 18 years of age. For determination of the age of the victim, the prosecution has relied upon the School Register (Ex-P/9c) which is proved by PW/3, who is the Head Mistress of the school. As per the entries made in the school register, the date of birth of the victim is 13/07/2000. From the DNA report, it has been proved that the appellant is the biological father of her child and this evidence alone sufficient to prove the relationship between the victim and the appellant. The victim is the minor girl and she was allured by the appellant on the pretext of marriage and the appellant made physical relation with her which comes under the definition of rape and therefore the trial court has rightly convicted the appellant and the impugned judgment of conviction and sentence needs no interference. 8. We have heard learned counsel for the parties and perused the record. 9. The first question arose in the case as to whether the victim was minor and less than 18 years of age on the date of incident or not. 10.The prosecution has mainly relied upon the School Register (Ex-P/9c) which is sought to be proved by PW/3, who is the Head Mistress of the school. She stated in her evidence that the police has seized the school register from her with respect to the age and date of birth of the victim. The register has been seized vide seizure memo and the original school register is (Ex-P/9) and its attested true copy is (Ex-P/9c). As per the entries made in the school register, the date of birth of the victim is 13/07/2000. In cross-examination, she admitted 6 that she is not the author of the school register and has not made any entry in the said school register. When the question was asked about the basis on which the entries have been made in the school register, she replied that for the entry in the school register regarding the date of birth of the students, no document is required. She could not tell as to whether the villagers have normally get the date of birth of their children recorded at the time of their admission in the school on assumption or not. Admittedly, the PW/3 is not the author of the school register nor the basis on which the entries have been made in the school register has been produced by the prosecution. 11. The Hon’ble Supreme Court has considered the admissibility and evidentiary value of the school register with respect to the age of the victim. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, 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.