Nand Kishor Kunjam S/o Balaram Kunjam @ Golu Aged About 20 Years R/o Chhote v. For
Case Details
1 VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.02.28 11:14:39 +0530 2025:CGHC:3770 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1172 of 2019 Nand Kishor Kunjam S/o Balaram Kunjam @ Golu Aged About 20 Years R/o Chhote Gobara Tikrapara Mainpur, District Gariyaband Chhattisgarh. ... Appellant State Of Chhattisgarh Through Police Station Mechaka, District Dhamtari Chhattisgarh. ... Respondent versus For Appellant : Mr. Rishi Rahul Soni, Advocate (through legal Aid) For Respondent/State : Mr. R.C.S. Deo, P. L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 21/01/2025 1. This appeal has been filed under Section 374(2) of Criminal Procedure Code 1973, against the impugned judgment of conviction and sentence dated 22.03.2018 passed by learned Special Judge POCSO (F.T.C.) Dhamtari, in Special Criminal Case No. 235 of 2017, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 376 of Indian : 10 years R.I. and fine of Rs. 2,500/- Penal Code & Section 6 of both offences & in default of payment POCSO Act, 2012. of fine, 06 months additional R.I. (All the sentences were directed to run concurrently.) 2.
Facts
The brief facts of the case are that on 08.10.2017, the victim PW-2 2 has lodged a written complaint to the police with the allegation that she introduced with the appellant in the marriage function and they started conversation with each other. Since two years back he proposed her that he is loving her and wanted to marry with her. In the month of December, 2016, when she was alone in her house the appellant came to her house and made physical relation with her on the pretext of marriage. Thereafter, he made frequent physical relation on the pretext of marriage at various places by which she conceived pregnancy in the month of December 2016. Again in the month of January, February 2017, he made physical relation with her and when she informed him that she is carrying pregnancy for about 3-4 months, thereafter, he started ignoring her and ultimately she delivered a child a months back from the lodging of the report and when the appellant refused for marry with her she lodged the report. On the basis of her written complaint Ex.P/5, the police has registered the FIR Ex.P/6 against the appellant for the offence under Section 376 of IPC and Section 6 of the POCSO Act. The victim was sent for her medical examination to primary health center Kukrail, where PW-5 Dr. Pooja Mittal has medically examined her and gave report Ex.P/11. No external injuries have been found on the body of the victim at the time of her medical examination and opined that she has delivered normally within 1 – ½ months back and she advised her to test Hemoglobin, blood group, blood sugar, sickle cell, HIV, hepatitis & VDAL. The victim was also referred for age confirmation to the radiologist at medical college Hospital, Raipur. With respect to the age and date of birth of the victim the police has seized school register 3 Ex.P/9 from the primary school, Chati and after retaining the attested true copy of the school register Ex.P/10-C, the original register was return back to the school. The appellant was arrested on 09.10.2017 and he too was sent for his medical examination to community Healthy Center, Nagri, where PW-8 Dr. A.K. Gaur, has medically examined him and gave his report Ex.P13 and found the appellant able to perform sexual intercourse. The statement of the witnesses have been recorded, spot map Ex.P/1 was prepared by the police and Ex.P/2 was prepared by Patwari, and after completion of usual investigation charge-sheet was filed under Section 376 of IPC and Section of 6 of POCSO Act, against the appellant before the learned trial Court. 3. Learned trial Court has framed charge for the offence under Section 376 of IPC and Section 6 of POCSO Act. The appellant denied the charges and claimed trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 9 witnesses. The 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 the oral as well as documentary evidence produced by the prosecution, the learned trial court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 6.
Legal Reasoning
"40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who 7 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 Jaiswal, 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 cannot 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. held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his 8 constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 13. 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, 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. 9 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.” 14. 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, concernedly, 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 10 births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (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 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.” 15. Reverting to the facts of the present case the PW-2 victim has stated in her evidence that her date of birth is 29.08.2000, but in cross- examination she stated that her date of birth was got recorded in the 11 school by her mother at the time of her admission and that is the reason she could remember her date of birth. She has not given her Aadhar Card to the police, PW-1 who is mother of the victim have not disclosed any date of her birth. Even, she has not disclose the age of the victim. She further stated in her cross-examination that her daughter was got admitted in the school by her husband and she has not gone to school at any time and has not made her signature in the school register. Though the defence has cross-examined about the the date of her marriage as well as birth of her first child after the marriage but she further admitted that she has not any document of birth of her children. From these evidence when no legally admissible documentary evidence is available and the oral evidence of the victim is also contradictory from that of the school record as the victim has stated that her date of birth is 29.08.2000, whereas in the school record Ex.P/4 and Ex.P/10-C her date of birth is recorded as 29.08.2001, there is no other evidence produced by the prosecution like kotwari register, birth certificate or even any ossification test report. Therefore, in absence of any cogent and clinching evidence it cannot be hold that victim was minor and less than 18 years of age on the date of incident. 16. So far as the offence of rape is concerned, the victim PW-2 has stated in her evidence that she met with the appellant since 5 years back in a marriage function in her relatives house. Since 2-3 years back he proposed her for marriage and shown his intimacy. Thereafter, he made physical relation with her after taking her towards jungal and he started making physical relation with her frequently as and when he came to her house even they have made physical relation at various 12 place in the month of December 2016, she conceived pregnancy and at that time also he assured her that he will marry with her. When she was carrying pregnancy of about 4 months, a village meeting was convened in which some altercation took place between mothers of both the parties and the appellant denied to accept the child from his side. On 06.09.2017, she delivered a male child and when the appellant denied to accept the child, she lodged the report. She further stated in her evidence that in the year 2015, her mother had seen her in compromising position with the appellant and at that time appellant fled away then only her mother came to know about their relation. 17. In cross-examination, she stated that she has not disclosed in her police statement that her mother has seen them in compromising position. She admitted that the persons appeared in the village meeting have insisted that the appellant is innocent. From the evidence of victim it appears that they were in relation for quite a long time without raising any objection and without making any complaint. Even when she conceived pregnancy she has not lodged any report to any where. As per the victim PW-2 her mother had seen in compromising position in the year 2015 despite that her mother have also not lodged any report and have not made complaint to any one. The evidence of the victim clearly demonstrate the consensual physical relation between them on her own will and without raising any objection. Had she been subjected to forceful sexual intercourse by the appellant, she would definitely have made any complaint to any one and it should not continued for such a long time. Therefore, this court finds that the victim was consenting party in making physical 13 relation with the appellant which continued for long time till birth of her child. 18. PW-1, the mother of the victim have stated in her evidence that last year she saw the victim and the appellant in compromising position in her house and then her daughter has informed that they were having relation since the time of marriage function of the daughter of one villager and since then they are making physical relation. When her daughter conceived pregnancy, the appellant denied to accept her and then after village meeting she lodged report. In cross-examination she also stated that she disclosed in her police statement that she saw the victim and the appellant in compromising position and if it not there in her police statement, she could not tell the reason. She further stated that the father of the appellant is her cousin brother and she voluntarily stated the victim herself had gone to the house of the appellant and then the mother of the appellant asked her to take her daughter back from her house. 19. As per evidence of PW-5 Dr. Pooja Mittal, no injuries were found on the body of the victim as their relations was continued for long time and she ultimately delivered a child. 20. From all these evidences, it can safely be hold that the victim was consenting party in making physical relation with the appellant. The prosecution has failed to prove that she was minor on the time of incident and she being the major girl and having love affair with the appellant and have engaged in making consensual physical relation with the appellant, no offence of rape is made out. 14 21. In the result the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentences are hereby set aside. The appellant is acquitted from the alleged offences. The appellant is reported to be in jail since 09.10.2017, He be released forthwith if not required in any other case. 22. Keeping in view, the provisions of Section 481 of B.N.S.S., the appellant is directed to furnish a personal bond for sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of 6 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 she appeared before the Hon’ble Supreme Court. 23. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav
Arguments
Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution 4 witnesses. Which can not be made basis for his conviction. There is no legally admissible evidence with respect to the age and date of birth of the victim to prove that she was minor and less than 18 years of age on the date of incident. The school register produced by the prosecution has not been proved by its author and the basis on which the entries have been made in the school register has also not been produced by the prosecution. In absence of any cogent and clinching evidence with respect to the age and date of birth of the victim, she could not be held to be minor on the date of incident. The victim was a major girl having love affairs and continue in physical relation with the appellant for about four years and till that time she has not made any complaint to any one against the appellant. Having remain in relationship with the appellant for quite long time, itself shows that she was the consenting party in making physical relation with the appellant on her own will, therefore no offence either under the IPC or under the POCSO Act have been made out and the appellant is entitled for acquittal. 7. On the other hand learned counsel for the State opposes and submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions, the evidence of prosecution witnesses are reliable and are sufficient for conviction of the appellant. The school register which is proved by PW-3, Kritika Yadav, Headmistress of the school have proved the entries made in the school register and date of birth of the victim. As per the school register and also the evidence of the victim as well as her parents, she is minor and unable to give her consent in making physical relation with the appellant. The appellant was remained in physical relation 5 with the minor victim which itself constitute the offence of rape for which the learned trial court has rightly convicted and sentenced him and therefore, his appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record of the case. 9. The first and foremost question arises for consideration would be the age of the victim as to whether she was minor and less than 18 years of age at the time of incident or not. 10. The prosecution has mainly relied upon the school register Ex.P/4-C & PW-10-C which are sought to be proved by Ex.P/3, headmistress of the school. She stated in her evidence that the police has seized the school register from her vide seizure memo Ex.P/9. After retaining the attested true copy of the school register and affidavit register of the school, the original register Ex.P/4 and Ex.P/10 have been returned back to the school. According to the school register, the date of birth of the victim is recorded as 29.08.2001. She brought the original register with her. In cross-examination, she admitted that in the affidavit register Ex/P/4-C in page No. 78 to 81 no date have been mentioned, she further admitted that in the affidavit register Ex.P/4-C who has made entry she could not know. She further admitted that on what basis the date of birth of the victim has been entered in the school register, she did not know. She also did not know who was posted in the school as headmaster on 18.06.2007. She further admitted that who has made entries in the school register and affidavit register Ex.P/4 and Ex.P/10, she did not know. 6 11. From the evidence of this witness admittedly, she is not the author of the school register and the basis on which the entries have been made in the school register have been produced by the prosecution. 12. The admissibility and evidentiary value of the school register has been considered by the Hon’ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, 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. The Hon'ble Supreme court held that 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. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under:-