Kanker, Chhattisgarh v. 1 - State Of Chhattisgarh Through Aarkshi Kendra Pankhajur, District Uttar Bastar Kanker, Chhattisgarh
Case Details
1 2025:CGHC:14932 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 422 of 2020 1 - Vishu Matlam S/o Rajnu Matlam Aged About 20 Years R/o Mahlapara Pankhajur, Police Station Pankhajur, District Uttar Bastar Kanker, Chhattisgarh., District : Kanker, Chhattisgarh ... appellant versus 1 - State Of Chhattisgarh Through Aarkshi Kendra Pankhajur, District Uttar Bastar Kanker, Chhattisgarh., District : Kanker, Chhattisgarh ... Respondent(s) For appellant For Respondent(s) : : Ms. Sameeksha Gupta, Advocate Mr. R. S. Marhas, Addl. Advocate General S.B. Hon’ble Ravindra Kumar Agrawal, Judge Order On Board 27.03.2025. 1. The present criminal appeal has been filed by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973, against the impugned judgment of conviction and sentence dated 30/01/2020 passed by learned Special Judge (Protection of Children from Sexual Offence Act, 2012) Bhanupratappur, Dist- North Bastar Kanker, in 2 Special Criminal Case (POCSO Act) No. 04/2019 whereby the appellant has been convicted and sentences in the following manner:- S. No. Conviction Sentence 1. U/s 366 of IPC 3 U/s 6 of POCSO Act. R.I. for 3 years and fine of Rs. 100/- in default of payment of fine 1 month additional R.I. R.I. for 10 years and fine of Rs. 5000/- in default of payment of fine 6 months additional R.I. both the sentences shall run concurrently.
Facts
2. Brief facts of the case are that the mother of the victim (PW/1) has lodged a written complaint (Ex-P/1) to the Police on 26.12.2018 with the allegation that one year back when she had gone to Pakhanjur to earn her livelihood, her daughter introduced with the appellant and he started calling on her mobile phone and took her with him and kept her in his house on the pretext of marriage. The appellant kept her daughter for about 7-8 months and made physical relation with her, despite her protest. When she insisted for marriage, she thrown her from his house. On the written complaint made by the mother of the victim (PW/1), the FIR (Ex-P/2) was registered against the appellant for the offence under Section 363, 366 and 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act”). The victim was recovered on 26.12.2018 and Recovery Panchnama (Ex-P/4) was prepared in presence of the witnesses. The victim was sent for her medical examination to Civil Hospital, Pakhanjur where Dr. Shonali Vaishnav (PW/6) has medically examined her and gave her medical report (Ex-P/16). During her medical examination, no external injuries have been found on her body and the Doctor has opined that she was carrying pregnancy as her urine 3 pregnancy test is found positive and for confirmation of the age of the gestation, she advised for USG test. Two slides of her vaginal swab were prepared, sealed and handed over to the Police for its chemical examination. Spot map (Ex-P/3) was prepared by the Police and (P/16) was prepared by the Patwari. With respect to the age and date of birth of the victim, the school register has been seized from Primary School Kandari vide seizure memo (Ex- P/14) and after retaining its attested true copy, the original register was returned back to the school. The appellant was arrested on 27/12/2018 and he too was sent for his medical examination to Civil Hospital Pakhanjur, where (PW-8) Dr. Dilip Kumar Sinha has examined him and gave his report (Ex-19). After his examination, the appellant was found to be capable to perform sexual intercourse. The semen slides of the victim, her underwear and semen slide and underwear of the appellant were sent for chemical examination to Regional FSL, Jagdalpur, from where Report (Ex-P/29) was received and according to the FSL report, the underwear of the victim, her vaginal slide, underwear of the appellant and semen slide of the appellant were found to be stained with semen and sperm. The statement under Section 161 of the witnesses have been recorded and Statement under Section 164 of the victim has also been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under Section 363, 366 and 376 of IPC and Section 6 of POCSO Act. 3. The learned trial Court has framed charge against the appellant for the offence under Section, 363, 366, 376 (2)(n) of the IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 4 4. In order to prove the charge against the appellant, the prosecution has examined as many as 12 witnesses. Statement of the appellant under Section 313 of Cr.P.C. 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. 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 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 8 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 victim although might have consented with the accused, if on the basis of the entries made in the register maintained by the the school, a judgment of conviction is recorded, 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. 9 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, 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 10 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 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 11 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 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.PW/2, the victim has stated in her evidence that the date of her birth is 6th and the year of her birth is 2003 but she could not remember the 12 month of her birth. In cross-examination, she admitted that she did not know as to who has got recorded her date of birth as 06.02.2003 and on what basis, it has been recorded she did not know. She further admitted that she is disclosing her date of birth on the basis of her school record. She also stated that she could not say as to whether her date of birth recorded in the school record is correct or incorrect. 15.PW/1, who is the mother of the victim has not disclosed any date of birth of the victim, rather she stated that at the time when the appellant took her daughter with him, what was her age, she did not know. She further admitted that she did not know the age of her daughter. From the aforesaid evidence it would be difficult for this Court to uphold the finding recorded by the learned trial Court that the prosecution has proved the age of the victim that she was minor and less than 18 years of age on the date of incident. This Court finds no sufficient evidence to prove the age of the victim that she was minor yet the learned trial Court has held her minor. 16.So far as the offence of kidnapping and rape is concerned, the evidence of the victim itself shows that she was in love affair with the appellant and she herself had gone with him and resided with him for about 7-8 months. They resided as husband and wife in the house of the appellant. Thereafter, he thrown her from his house and she came back to her parents house. She conceived pregnancy by their relationship. In cross-examination, she specifically admitted that he was in love affair with the appellant and due to which she started residing with him. She stayed with the appellant for about 7-8 months as wife. She further admitted that while they were residing at husband and wife both of them had gone to earn their livelihood and they were 13 happy. They also visited various places and she shown her anger-ness only when the appellant consumed liquor and beaten her. She also admitted that since the appellant was used to beat her and therefore, she left his house and made report against him. She also admitted that the physical relation between her and the appellant was made during her stay with him as husband and wife. 17.When the victim herself stated that she has gone to the house of the appellant, they stayed for about 7-8 months. Both of them were in love affair. She made physical relation with him while residing with him as wife, the offence of kidnapping or rape is appears to be not made out. Even from the evidence of PW/1 the mother of the victim, it reflects that her daughter had resided with the appellant for about 7-8 months and the appellant is her son-in-law. She herself has not disclosed anything to the Police and first time deposed before the Court. She also admitted in her cross-examination that her daughter has not disclosed any incident to her. From the nature and quality of the evidence produced by the prosecution, the victim cannot be considered to be a sterling witness as has been held by the Hon'ble Supreme Court in the case of Santosh Prasad alias Santosh Kumar v. State of Bihar reported in 2020 (3) SCC 443 has held in para 5.4.2. that:- 5.4.2. In Rai Sandeep, this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under (SCC p. 29) "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is 14 the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged" 18.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 15 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 the victim must inspire confidence. Even though the testimony of 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 charges levelled against the appellant beyond any reasonable doubt, which prosecution has failed to do in the instant case.
Arguments
6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecutions witnesses and such evidence cannot be made basis for the conviction of the appellant for the in question. There is no legally admissible evidence with respect to the age and date of birth of the victim to prove that she was minor on the date of incident. The school record produced by the prosecution has not been proved in accordance with law by examining its author and the basis on which the entries have been made in the school record has not been produced. There is no birth certificate or ossification test report of the victim to determine her actual age on the date of incident. He would further submit that as per the evidence available on record, the victim was the consenting party and she was in love affair with the appellant, she on her own will eloped with him and resided with the appellant for about 7-8 months without raising any objection. Even her parents were in knowledge that she was residing with the appellant and in that period she engaged in 5 making consensual physical relation and it is only when the appellant refused to perform marriage with her, she lodged the report. He would also submit that the ingredients of the offence of kidnapping and rape are missing in the case and therefore, no offence against the appellant is proved by the prosecution and he is entitled for acquittal. 7. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that but for minor omission and contradictions, the evidence of the prosecution witnesses are fully reliable and the conviction of the appellant can be based on it. As per the school record, the victim was minor on the date of incident and less than 18 years of age and she was not competent to give her consent. The appellant has made physical relation with the victim who was minor on the date of incident which comes under the definition of rape. Keeping away from her lawful guardianship to a minor girl itself spells about the offence of kidnapping and there are sufficient evidence available on record to that effect and it is not disputed by the appellant that she was residing with the appellant for about 6-7 months. He would further submit that the victim conceived pregnancy by the act of the appellant which also proved that he sexually exploited her and ultimately refused to marry with her, therefore, from the evidence produced by the prosecution, the conviction of the appellant is justified and his appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record. 6 9. The first and foremost question arose for consideration in the case would be the age of the victim that on the date of incident she was minor or not. 10. The prosecution has mainly relied upon the School register (Ex-P/15c) to prove the age of the victim which is sought to be proved by PW/4 who is the teacher of the School. He stated in his evidence that he is the Assistant Teacher of the School since 1995. The Police has seized the school register vide seizure memo (Ex- P/14) and after retaining its attested true copy (Ex-P/15c), the original register was return back to the school. He brough the original register with him in which the date of birth of the victim is recorded as 06/02/2003. In cross examination he admitted that the entries made in the school register have not been made by him and he did not know who has made the entries in the school register. It is quite vivid that, he is not the author of the school register (Ex-P/15c). Even the basis on which the entries have been made in the school register have not been produced by the prosecution and except this piece of the evidence, no other documentary evidence produced by the prosecution to prove the age of the victim that she was minor and less than 18 years of age. 11. The relevancy and admissibility of the school record is considered by the Hon’ble Supreme Court 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, in which it has been observed that: "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 7 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.
Decision
19. In view of the above, this Court is of the opinion that the prosecution could not establish the offence against the appellant beyond reasonable doubt and there is no sufficient evidence to convict the appellant for the offence in question. 20.In view of the above, the conviction and sentence of the appellant for the offence under Section 363, 366 and 376 (2)(n) of IPC and Section 6 of POCSO Act are hereby set aside. The appellant is acquitted from all the alleged offences. the appeal filed by the appellant is Allowed. 21. The appellant is reported to be in jail since 27.12.2018, he be released forthwith if not required in any other case. 22.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 sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.04.03 14:33:07 +0530