Nafr High Court
Case Details
1 CRA No. 1130 of 2024 2025:CGHC:29716-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1130 of 2024 Rakesh Tandon S/o. Rusu Ram Tandon Aged About 20 Years R/o. Koundkera, P.S. Rajim, District Gariyaband (C.G.) versus ... Appellant State Of Chhattisgarh Through Police Station Panduka, District Gariyaband (C.G.) (Cause-title taken from the Case Information System) ... Respondent(s) For Appellant(s) : Mr. Shishir Dixit, Advocate For Respondent(s) : Mr. Malay Jain, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Bibhu Datta Guru, Judge 02/07/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 11.01.2024 passed in POCSO Case No. 38/2021 by the learned learned 2 CRA No. 1130 of 2024 Additional Sessions Judge, Fast Track Special Court (POCSO and Rape Cases), Gariyaband, C.G., whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 02 years and fine of Rs. 1,000/- with default stipulation. U/s 366 of the IPC Rigorous imprisonment for 05 years and fine of Rs. 2,000/- with default stipulation. U/s 6 of the POCSO Act Rigorous imprisonment for 20 years and fine of Rs. 5,000/- with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that the father of the victim lodged an oral report of missing of his daughter aged about 17 years on 6.4.2020. Thereafter on suspicion of abduction, Crime No. 35/20 U/s 363 of IPC was registered and matter was taken into investigation. During course of investigation, at around 19:00 hours on 6.4.2020, the prosecutrix was recovered from custody of appellant. On 7.4.2020, the statement of victim was recorded by Women Police Officer, wherein the prosecutrix stated that appellant told prosecutrix by saying that he loves her and wants to marry her and took her to Abhanpur where he committed sexual intercourse with her. On the basis of statement of prosecutrix, Section 366, 376(2) of IPC and Section 6 of POCSO Act was added and appellant was arrested by the police. 3. During investigation, Spot Map (Ex.P/10) was prepared. Statement of 3 CRA No. 1130 of 2024 the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution has examined 11 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 11.01.2024 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7.
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 7 CRA No. 1130 of 2024 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, for obtaining an namely, for obtaining admission; 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 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." offence where 15. 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: 8 CRA No. 1130 of 2024 33.2. 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 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. Rules 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 the case is pending for trial Board when 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 scrutinized and accepted only if worthy of such acceptance. 9 CRA No. 1130 of 2024 33.6. That it is neither feasible nor desirable to to determine the lay down an abstract formula 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 order to ensure that the benefit cases. This is in 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 school records, it the basis of evidence such as is necessary that the same would have to be per Section 35 of the Indian considered as 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 10 CRA No. 1130 of 2024 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 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 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 11 CRA No. 1130 of 2024 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." 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 12 CRA No. 1130 of 2024 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)(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. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. 18. The next question for consideration would be whether the appellant has committed rape upon her or not. 19. PW/2 -victim stated in her statement that she knows the accused Rakesh Tandon. She stated that she and the accused met in Kaundakera village. 13 CRA No. 1130 of 2024 The accused gave her his mobile number. She received a call from the accused. Thereafter she and the accused used to talk intermittently through mobile. She stated that about a year after the engagement of the accused's sister, she and the accused went to Ghatarani by motorcycle. The accused used to tell her that if she do not marry him, he will die. She stated that the accused came near her school and forcefully took her to his house. At that time, she stayed at the accused’s house for five days. She stated that during that period, the accused had established physical relation and sexual intercourse with her three times. She stated that she had refused to make physical relation but he had forcefully made the physical relation. At this stage, the Public Prosecutor declared the witness partial hostile. She stated that the accused called her and said that come let him take you for a tour. She went with the accused near the school without informing anyone from her family. 20. In cross-examination, PW/2 has categorically stated that she had a love affair with the accused and they used to talk to each other on phone at night. She further stated that the police brought me and the accused to the police station, where she did not tell anything about the incident at the police station and the police released the accused on that day. She further stated that she wanted to marry the accused because she had a love affair with him. She also stated that her parents knew about her love affair with the accused. She stated that since her parents forbade her from talking to the accused on the phone, she went with the accused. She further stated that at that time she had told the accused that she was 18 14 CRA No. 1130 of 2024 years old. She also stated that the accused did not take her with him forcibly instead she went with him on her own free will and did not have sex with her forcibly or without her consent. 21. PW/ 3 is the father of the victim who has stated in his cross-examination that his daughter used to talk to the accused on mobile, which he was aware of. He further stated that he used to forbid his daughter from talking to the accused on mobile and also scolded her. He further stated that he did not want his daughter to marry the accused. 22. PW/1 is the mother of the victim who in her cross-examination categorically stated that she and her husband were aware of the fact that her daughter and the accused had a love affair. She also stated that her daughter used to talk to the accused on mobile phone at night. She stated that they snatched the mobile phone from their daughter because she was talking to the accused on phone at night. She stated that she and her husband did not want to get their daughter married to the accused. This witness has stated spontaneously that the accused came to her village and took her away with him. 23. Dr. Snehlata Humne (PW/5) in her statement stated that no marks of injury were found on her body. There were no marks of injury anywhere in the genitals. From the statement of this witness, it is clear that the sexual intercourse has been done with the consent. 24. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the 15 CRA No. 1130 of 2024 appellant has committed rape upon her, rather it reflects from the evidence that the victim herself had made consented sexual intercourse with the appellant. It is also clear from the statements of the prosecution witnesses that the physical relation they made was consensual in nature, thus, it cannot be said that the appellant committed the offence. 25. 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 leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 26. For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim, and from the evidence of the victim the same creates doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, we are of the view that the appellant is entitled to be acquitted. 27. The accused is acquitted of the charges for which he was tried. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted from the charge leveled against him. The appellant is in jail. He be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall 16 CRA No. 1130 of 2024 remain in operation for a period of six months as required under the provisions of Section 481 of the BNSS. The appellant shall appear before the higher Court as and when directed. Accordingly, the Criminal Appeal is allowed. 28. 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/- Sd/- (Bibhu Datta Guru) Judge (Ramesh Sinha) Chief Justice S. Bhilwar/ Gowri
Arguments
Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. He would submit that the medical report is not supported the version of the prosecution. In the evidence of the witnesses, it can be seen that there are material contradiction and omissions. Learned counsel would submit that the 4 CRA No. 1130 of 2024 prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident and without there being any evidence with regard to the age of the Victim, the conviction of the appellant is bad in the eyes of law. 8. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 9. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question arises before this Court whether the victim was minor on the date of incident or not?. 11. The Victim (PW/2) in her deposition has stated that she is pursuing in the first year of graduation B.A. She stated her date of birth as 05/03/2003. She was asked further, she remains silent for a long time and is not giving a quick answer. However, in her cross-examination, she stated that she celebrates her birthday on 12th March of every year whereas she stated her date of birth as 05/03/2003. She stated that she tell her date of birth on the basis of her 10th class marksheet and other documents. From this statement, it is crystal clear that there is no proof of her date of birth was found. 5 CRA No. 1130 of 2024 12. PW/3 father of the victim and PW/1 mother of the victim also stated in their statement that at the time incident, the age of victim appears to be 17 years but there is no proper document or proof to prove the date of birth of the victim. Father of the victim in his cross-examination also stated that he is not educated enough to tell the actual age or date of birth of the victim. According to their contradictory statements, the age of the victim cannot be defined. 13. Perusal of the aforesaid statements of the witnesses would show that though all of them have stated that at the time of incident, the victim was aged about 17 however, there is no basis or certificate has been attested to verify the age of the victim. As also there is no medical evidence with regard to actual age of the victim. 14. 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, the 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. 6 CRA No. 1130 of 2024