Shyamlal Mandavi v. State Of Chhattisgarh

Learned counsel for the appellant would submit that the learned trial court has erred in convicting the accused appellant for the offences as mentioned above. The conviction of the appellant is bad, illegal and improper as the prosecution has failed to prove the school certificate and there is an issue regarding the determination of the age of the prosecutrix which is a crucial point to consider while deciding on merits. The prosecution has failed to produce 4 any evidence including her school certificate. She stated that she has not attained the age of 15 at the time of incident but her father in his cross-examination has opined that she could not state her present age.

#9. Learned counsel for the appellant in order to establish his submission he relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Birad Mal Singhvi Vs. Anand Purohit 1988 Supp SCC 604, where in para 17 it is held that:- “17. … the entries regarding dates of birth contained in the scholar’s register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined. “ He also relied upon the judgment of the Hon’ble Supreme Court in the matter of Sunil Versus State of Haryana (2010) 1 SCC 742 where in para 26 it is held as under:- “26… In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.”

#10. On the other hand, Learned State counsel supporting the impugned judgment and submits that the prosecutrix was a minor girl aged between 13 to 15 years on the date of incident and this fact has been duly proved by the prosecution by the ossification test conducted by the Doctor. As such, the act committed by the accused appellant makes him liable for conviction under the above mentioned sections. So, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed. 5

#11. I have heard learned counsel for both the parties at length, and perused the record with utmost circumspection.

#12. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under :1. “94. Presumption and determination of age- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2). In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake process of age determination, by seeking evidence by obtaining- (i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) The birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the above, age shall be determined by an ossification test or any other latest medical age determination test conduct on the orders of the Committee or the Board: Provided such age determination test conducted on the order the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

#13. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh and others, 2022 (8) SCC 602, while considering the various judgments, the Hon’ble Supreme Court has observed in para 33 as under: “33. What emerges on a cumulative consideration of the 6 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.

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 scrutinized 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. 7

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 8 mentioned in Section 94(2) of the JJ Act, 2015.”

#14. The burden of proving the age of the victim at the relevant time of the incident is on the prosecution. But after due observation of the case, it is observed that the prosecution has not got any of the educational documents or the teacher of the educational institution studied to prove her age. Therefore, the ossification test of the victim was conducted to know the approximate age of the victim.

#15. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. On behalf of the prosecution, for determining the age of the victim, Dr. R.K. Singh PW-6 stated that on 30.05.2013 on being referred by Dr. S. Mahobia for determining the age of the victim, the victim was presented. According to the statement of this witness, under his direction, X-ray of the right crest, right jaundice, right shoulder and right elbow of the victim was done by the radiologist . On examining, the age of the victim was found to be between 13 to 15 years. In cross-examination, this witness 8 admitted that the exact age cannot be determined on the basis of x-ray test and the lifestyle and environment of the person affects the age of the bone. Apart from this no question has been asked by the defense side to this witness. The said witness is an expert witness and there is no reason as to disbelieve his statements. In relation to the age determined by the radiologist the maximum age of the victim or the person in question can be considered to be ahead or behind two years. IN this case the maximum age of the victim has been stated by the medical witness PW-6 is to be 15 years, in which after increasing two years also the age of the victim becomes only 17 years. Thus, on the date of the incident, the victim is proved to be a minor woman who was below 18 years of age.

#16. The victim PW-1 has stated in her examination that about two years ago, at around 8 PM, she had gone with her mother’s sister to fill water in the hand pump, when the accused came near the boring and asked both of them to walk till Sarai Tree, but they refused. After refusing to do so, the accused caught her and Santuram took her mother’s sister and they took them to Shyamlal Banglapra School. In the night itself the accused forcefully raped her and thereby the victim returned to her home in the morning. The mother’s sister has corroborated the statement of the victim.

#17. The mother of the victim that is PW- 4 stated that at the time of sunset on the date of incident, her daughter and her sister PW-2 had gone to fill water, but when they did not return home for a long time, they searched till 12’0 clock, but they were not found. They 9 both returned in the morning at around 5’0 clock and on being asked where they were, they told that the accused took them to the school.

#18. The victim told all the happenings to her father PW-5, whose statements also corroborated with the statements of his wife/victim’s mother PW-4.

#19. FSL report Ex. P-22 reports that human sperm was found in the slide of the victim. But no semen strains or human sperm were found in the leggings Exhibit’A’ of the victim and in the underwear Exhibit ‘C’ of the victim. According to the said chemical test, it cannot be expected that human semen stains would be present in the clothes of the accused as the rape occurred in the night and the victim returned to her home in the morning and it is presumed that when she returned home she must have washed her clothes, which ultimately led to washing away of the human semen stains. The mere absence of presence of human semen in the said clothes does not frustrate the statement of the victim and the entire contention of the prosecution. The evidence shows that no marks of injury were found on the internal organs of the prosecutrix, but keeping in view the oral evidence of the prosecutrix the absence of wound on her private part cannot be the sole criteria to conclude that there was no sexual intercourse with the prosecutrix. On the basis of the above evidence, it is proved that the accused has committed sexual intercourse with the victim at the time of incident, as the FSL report has been found to be positive.

#20. From the perusal of the statements of prosecutrix , her father as 10 well as other prosecution witnesses and after considering the evidence collected by the prosecution, I find that there are legally admissible evidence which has been brought by the prosecution to prove the fact that the prosecutrix was minor and less than 18 years of age on the date of incident, despite the fact that the Trial Court in the impugned judgment has held the prosecutrix minor. Accordingly, this Court find that it is not appropriate to set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has been proved by the prosecution and in that case the consent of the prosecutrix becomes immaterial and irrelevant.

#21. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix was minor at the time of incident, which is clearly proved by the ossification test. Also the statement of the prosecutrix is supported by Phoolbati and her parents. Moreover, the FSL report is also positive. Hence there seems to be no cogent and valid ground on which the accused appellant deserves to be released.

#22. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, this Court is of the opinion that the age of the prosecutrix is verified and proved by the prosecution that prosecutrix was minor at the time of incident and even if she was a consenting party , her consent becomes totally immaterial and further FSL report is also found positive. Therefore, in the above 11 facts and circumstances of the case, aforementioned sections would be made out against the Accused appellant.

#23. Accordingly, the appeal is liable to be and is hereby dismissed. The judgment passed by the trial court remains intact. (Arvind Kumar Verma) Judge sd/- alfiza