Nafr High Court
Case Details
1 BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.10 11:11:33 +0530 2025:CGHC:1087-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 458 of 2024 Shiva Patel S/o Subhash Patel, aged about 22 years R/o Village Temar, Police Station Sakti, District - Sakti, Chhattisgarh. versus ... Petitioner(s) State of Chhattisgarh Through Police Station Sakti, District - Sakti, Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Deepak Kumar Singh, Advocate For Respondent(s) : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal , Judge Per Ramesh Sinha, CJ 08.01.2025 1. This criminal appeal arise out of the judgment of conviction and order of sentence dated 04.11.2023 passed by the learned Special Judge (F.T.S.C.), Sakti, District – Janjgir-Champa (now Sakti) in Special Criminal Case No.57/2022, whereby the appellant has been convicted and sentenced with a direction to run all the sentences concurrently in the following manner : Sl.No. Conviction Sentence 1. Under Section Rigorous imprisonment for 03 years and 363 of the IPC fine of Rs.1,000/- in default of payment of fine further rigorous imprisonment for 06 months. 2 2. Under Section Rigorous imprisonment for 03 years and 366 of the IPC fine of Rs.1,000/- in default of payment of fine further rigorous imprisonment for 06 months. 3. Under Section 6 of Rigorous Imprisonment for 20 years and the POCSO Act fine of Rs.10,000/- in default of payment of fine further rigorous imprisonment for 01 year. 4. Under Section Rigorous Imprisonment for 20 years and 376(3) of IPC fine of Rs.10,000/- in default of payment of fine further rigorous imprisonment for 01 year. 2. Learned State counsel submitted that notice issued to the complainant / father of the victim (PW-1) has been served to him, but none has appeared on his behalf to contest the present appeal. 3. Case of the prosecution, in brief, is that the victim aged 13 years 10 months left her home on 10.08.2022 at 4 P.M. to go to the bus stand, but she did not return. Then the complainant searched for the victim, but could not find her. In this regard, on the written report of the father of the victim (Ex.P-1), a crime was registered against an unknown person in Police Station Sakti under Section 363 IPC vide Ex.P-2 and investigation was taken up. During the investigation, the victim was recovered from the accused and recovery panchnama Ex.P.-4 was prepared. The police statement of the victim was recorded and her statement under Section 164 Cr.P.C. (Ex.P-14) was also recorded by the Judicial Magistrate 3
Facts
First Class, on the basis of which the accused lured the victim and took her away and had physical relations with her. On finding that the accused has made sexual intercourse with the victim, Sections 366 & 376 of the IPC and Sections 4,& 6 of the POCSO Act were added in the case. During the investigation, after taking consent from the complainant i.e. father of victim vide Ex.P-3, the medical test of the victim was conducted as per Ex.P.-20. Memorandum statement of the accused was recorded vide Ex.P-9 and on finding evidence of crime against the accused under the above mentioned sections, he was duly arrested vide arrrest memo Ex.P-25 and information of arrest was given to his family members vide Ex.P-26. During the investigation of the case, maps of the incident spot (Exs.P.10 and 11) were prepared by the police officer. Map (Ex.P.-12) was also prepared by the Patwari. According to seizure memo Ex.P.-23, three vaginal slides of the victim and according to seizure memo Ex.P.-6, one Hero HF Deluxe No. CG 12 AE 8760 chassis number MBLHA11EWD9810781 were recovered from accused Shiva Patel. The victim's admission and discharge register as per seizure sheet Ex.P.-16 and seizure proceedings of the victim's original caste certificate were carried out as per seizure sheet Ex.P.-7. Statements of witnesses were recorded as per their statements. During investigation, the victim was found to be from the Scheduled Caste, so Section 3 (2) (v) of the Atrocities Act was added in the case and after completion of investigation, a charge 4 sheet was prepared under the above sections in the case and presented before the Court of Special Judge (FTSC), Sakti. 4. Charges were framed against the accused under Sections 363, 366 of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012, in the alternative, Section 376 (3) of Indian Penal Code and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and their contents were read out and explained to him. The accused denied the charges and claimed trial. When the accused was examined and his statement was recorded under Section 313 of Criminal Procedure Code, he declared himself innocent and expressed his desire not to give defence evidence in his defence. 5. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 23 witnesses and exhibited 35 documents in support of its case. 6. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 04.11.2023 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by the appellant calling in question the impugned judgment. 7.
Legal Reasoning
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 10 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." 15. In the matter 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 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. 11 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of section 35 and other the Indian Evidence Act viz., provisions. 12 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.” 16. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: 13 “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.” 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 14 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. 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.” 17. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident yet the trial court in the impugned judgment has held her minor,
Arguments
Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable 5 doubts. There is no legally admissible evidence with regard to the age of the victim that on the date of the incident she was minor and less than 18 years of age. In absence of examination of any supporting document so as to prove the entry made in the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the victim. Admission and discharge register is a weak type of evidence. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the victim that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the father and mother of the victim have not disclosed date of birth of the victim, as such, there is no legally admissible and convincing evidence available on record to establish that the victim was minor on the date of incident. Learned counsel further argued that the victim is a consenting party and she herself had established physical relations with the appellant and she went alongwith the appellant on his motorcycle from her village to Champa, thereafter to village Temar (Sakti) and lastly to Kirodimal Nagar, wherein she resides with the appellant for 2-3 weeks, but she never tried to flee nor she had raised any alarm. Therefore, the alleged offences of the IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes and contends that the victim was minor and below 18 years of age at 6 the time of incident which is proved by the School admission and discharge register Ex. P-18C which contains the date of birth of the victim as 09.10.2008. Though the victim, her father and mother have stated that they do not remember the date of birth of the victim, but have specifically stated that she was around 13 years of age. The school register is admissible piece of evidence to determine the age of the victim. Therefore there is no illegality or infirmity in the findings of the learned trial court. The victim was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her. As such, the impugned judgment of conviction and sentence needs no interference. 9. We have heard the learned counsel for the parties and peruse the record with utmost circumstance. 10. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School admission and discharge register Ex. P/18C which is sought to be proved by PW-3 Harpal Singh Sidar, the Headmaster of the concerned school, who has stated in his deposition that he was posted in Government Primary School Masniyakala Police Station Sakti from the year 2008 to 21.11.2022 and presently at the time of recording his evidence, he was posted in Government Primary School Boirdih. He further stated during his posting, on 30.09.2022, a memo was 7 given by Police Station Sakti regarding providing Dakhil Kharij register of the victim in the case of Crime No. 293/22 Section 363, 366, 376 IPC and 4, 6 POCSO Act, the receipt of which is Ex.P. 15. On the basis of the said memo, he took out the original Dakhil Kharij register related to the victim and presented it before the police, which was seized by Sub Inspector Upendra Yadav and seizure sheet Ex.P.16 was prepared. After seizure, the original Dakhil Kharij register has been returned to him on a delivery letter, the receipt of which is Ex.P.17. The original Dakhil-Kharij register is Ex.P-18 and the attested copy of the same is Ex.P-18C, in which the date of birth of the victim has been mentioned as 09.10.2008. In cross examination, this witness has admitted that no certificate regarding the birth of the victim is attached in the original Dakhil Kharij register of Ex.P-18. He himself has stated that the certificate regarding the birth of the victim is attached in Tatimma, which he had not brought. 11. Thus, it is clear that at the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her father and on the oral information given by father of the victim the entry was made in the School admission and discharge register. Moreover, PW-1, father of the victim, PW-2, the victim herself and PW-4, mother of the victim have stated that they do not know the actual date of birth of the victim. Except dakhil kharij register (Ex.P-18C) no other evidence such as birth 8 certificate, Kotwari register or ossification report are produced by the prosecution to prove the actual age of the victim. 12. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school admission and discharge register it would not be safe to hold that the victim was minor on the date of incident. 13. In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 14. In the matter of Alamelu and Another Vs. State, represented by 9 Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. It was 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.
Decision
hence, we set aside the finding given by the trail Court that on the date of incident the victim was minor. 18. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, we have carefully perused the statement of the victim recorded under Section 164 CrPC. In her 164 CrPC statement, the victim has stated that about a month ago, her friend Anisha came to her house at 1 P.M. and asked to drop her at the bus stand. While she was walking with her to the bus stand, on the way, she met accused Shiva and he asked her to come with him. Her friend and she went with the accused to the 15 bus stand and then to Temer. After that, accused Shiva and she went to village Kirodimal and were staying there in a rented house. Shiva had sexual relations with her. After that, she called her mother and she took her away. In her 164 CrPC statement, she has not stated that the appellant allured or threatened her or used any force while travelling along with him and while making physical relationship with her against her will or consent. 19. In para 8 of her cross-examination, the victim has admitted that her friend Anisha told her that she was running away, if she too will run away with Shiva then come with her, so she went with him. She further admitted that the accused had said that he do not have money, so she took Rs.2000/- from her home and went. She also admitted that before this incident the accused had said that he would not take her. She herself stated that her friend told her that as she had come to her house, if she run away then her family members will scold her, so she also run away with Shiva, as such, she also went. On close scrutiny of the evidence of the victim, it is clear that the victim was a consenting party. 20. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the 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 16 appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 21. Considering the entire evidence available on record and the conduct of the victim, we are of the opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 363, 366, 376(3) of the IPC and Section 6 of the POCSO Act would not be made out against the appellant. 22. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 04.11.2023 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 27.08.2028. He be released forthwith if not required in any other case. 23. Keeping in view of the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bond in terms of from No.45 prescribed in the Code of Criminal Procedure for a sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court. 17 24. The Trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- Sd/- Sd/- Sd/- (Ravindra Kumar Agrawal) Judge (Ramesh Sinha) Chief Justice Bablu