Surajpur, Chhattisgarh v. 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Bhatgaon, District
Case Details
1 2025:CGHC:6996-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1328 of 2021 1 - Vijay Singh S/o Babulal, Aged About 25 Years R/o Village Laxmipur, At Present R/o Chungadi, P.S. Bhatgaon, District Surajpur Chhattisgarh, District : Surajpur, Chhattisgarh ... appellant versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Bhatgaon, District Surajpur Chhattisgarh, District : Surajpur, Chhattisgarh ... Respondent(s) For appellant For Respondent(s) : : Mr. Manoj Kumar Jaiswal, Advocate Mr. Malay Jain, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 07.02.2025 1. The matter is listed on consideration on I.A. No. 1 which is an application for suspension of sentence and grant of bail. Despite notice issued to the father of the victim (PW/6), no one appears on his behalf to record his statement. 2
Facts
The matter is listed in motion hearing and with the concent of the parties, the matter has been heard finally. 2. The present criminal appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 27/08/2021 passed by learned Addl. Sessions Judge (FTC) Special Court Surajpur, Dist- Surajpur (C.G.) in Special Sessions Case No. 49/2019 whereby the appellant has been convicted and sentenced as below:- S.No. Conviction Sentence 1. Under Section 363 of IPC R.I. for 07 years and fine of Rs. 200/- in default of fine additional R.I. for 4 month. 2. Under Section 366 A of IPC R.I. for 510years and fine of Rs. 200/- in default of payment of fine additional R.I. for 4 months. 3. Under Section 06 of POCSO Life imprisonment till natural death, wite fine Act. of Rs. 200/-, in default of payment of fine further R.I. for 4 months (All the sentences shall run concurrently) 3. Brief facts of the case are that on 18/07/2019, the father of the victim (PW/6) has lodged a written complaint to the Police (Ex-P/9) with the allegation that her minor daughter had gone to the Bhatgaon market on 14.07.2019 that was Sunday and has returned only on Tuesday and informed him that the appellant is committing rape upon her since last 1-2 years on the pretext of marriage and he kidnapped her on Sunday. On the basis of written complaint made by the father of the victim, the FIR (Ex-P/10) was registered against the appellant for the offence under Section 363, 366, 376 of IPC and Section 5 (l) and 6 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act”). The victim was sent for her medical examination to primary heath centre, Ajab Nagar where she was medically examined by PW-1 Dr. Suchita Nirmala Kindo, who after her medical examination, gave 3 report (Ex-P/1). While medical examination of the victim, no external injuries have been found on her body and the doctor has opined that the victim is experienced of sexual intercourse, no sign and symptoms of forceful sexual intercourse regarding recent intercourse. Two slides of her vaginal swabs were prepared, sealed and handed over to the Police for its chemical examination. With respect to the age and date of birth of the victim, the Police has seized the school register from Government Primary School, Chungarhi vide seizure memo (Ex-P/3) and after retaining the attested true copy of the school register (Ex-P/2c), the original register was returned back to the school. Spot map (Ex-P/11) was prepared by the Police and (Ex-P/12) was prepared by the Patwari. Panchnama (Ex-P/13) was also prepared by the Patwari. The progress report card of Class-5 of the victim (Ex-P/19) was also seized by the Police. The appellant was arrested on 20/08/2019 and he too was sent for his medical examination to the Community Health Centre, Bhatgaon, where Dr. Ratan Prasad Minj has examined him and gave his report by which the appellant was found to be capable to perform sexual intercourse. The vaginal slide of the victim were sent for its chemical examination to State FSL, Ambikapur. Statement under Section 161 of Cr.P.C. of the witnesses as well as Statement under Section 164 of Cr.P.C. of the victim have been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under Sections. 363, 366 & 376 (2)(n) of IPC & Section 5(l), 6 of POCSO Act before the trial Court. 4. The learned trial Court has initially framed the charge under Section 363, 366 and 376 (2)(n) of IPC and Section 6 of POCSO Act on 29/10/2019. The appellant denied the charge and claimed trial. 5. In order to prove the charge, the prosecution has examined as many as 08 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also 4 been recorded in which he denied the material appears against him, plead innocence and submitted that he has been falsely implicated in the offence. 6. Vide order dated 27/08/2021, the charge framed against the appellant has been amended and in place of charge of Section 366, the same was substituted by Section 366 A of IPC. The prosecution as well as the defence have not raised any objection in the said amendment of charge and have not claimed for leading any further evidence or any further examination/ cross- examination of the witnesses. 7. 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 7 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 that is, by the "evidence by admissible evidence, truth of those persons who can vouchsafe for the 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 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 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 regardto 8 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 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." 14. 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 9 (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of 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." 10 15. 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 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 11 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." 16. Reverting to the facts of the present case, the victim (PW/4) has not stated any date of birth. In her cross-examination, she stated that she is having four sisters including her and she is the eldest, her youngest sister is age about 12 14 years and there is difference of age of three years in each of her sisters. From the evidence of victim, it is not reflected that she was minor rather in chief examination, she did not disclose her age and date of birth and in cross- examination, she admitted the age difference in her sisters and according to which she appears to be major on the date of incident. 17.PW/5 who is the mother of the victim has also not stated any date of birth of the victim, she also stated in her cross-examination that she did not know the date of birth of her daughter. She is having five children and her eldest daughter is aged about 30 years and the victim is 10 years younger than her eldest daughter. This also goes to show that the victim was major on the date of incident and more than 18 years of age. 18.PW/6 who is the father of the victim, they stated in his cross-examination that the victim is his second number daughter, who was aged about 15-16 years. In cross-examination, he stated that he did not know the date of birth of his daughter. He further admitted that the teacher of the school has got recorded her date of birth on assumption. From all these evidences, it is quite vivid that there is no cogent and clinching evidence with respect to the age of the victim. The school record has not been proved in accordance with law. The parents as well as the victim herself has not disclosed any date of birth and the age gape between the sisters of the victim, clearly demonstrate that she is major and more than 18 years of age. It is very difficult for this court to hold that the victim was minor on the date of incident only on the basis of school record which is not proved in accordance with law yet, the learned trial Court has held her minor. 19.So far as, the offence of kidnapping, procuring a minor girl for illicit intercourse and the offence of rape is concerned, we again examined the evidence of PW/4. She Stated in her evidence that on the date of incident at about 4 pm, when she returning back from the market, on the way, the appellant met her, he took her to his house by dragging and kept her their for 13 about two days and committed rape upon her. After two days, he left her and then, she returned back and informed the incident to her parents, thereafter, the report has been lodged. In cross-examination, she admitted that there was heavy crowd in the market day. His house is situated at about 2-3 km from the market. She along with 5-6 persons had gone to market on the date of incident. Her grand mother was also there with her. They went to the market crossing the village Laxmipur. She further admitted that the appellant took her to his house by dragging has been disclosed before the Court first time. She further stated that at the time, when the police persons came to her for recording of her statement, he father has instructed as to what statement she has to give. She further admitted that she deposed on the instructions of her father. She also admitted in her cross-examination that the appellant, has already married since 5-6 years back and he is residing along with her family in his house. From the evidence of the victim, it is not there that she raised any alarm or protested when the appellant allegedly took her with him by dragging into his house. As per the victim itself, it was a marked day and a very busy road due to market day. Yet there is no evidence of any persons have seen them on the way going with the appellant or the appellant dragging her towards his house even there is no evidence that while residing with the appellant for about two days in his house, she made any efforts to get out from the clutches of the appellant or while making physical relation with him by giving nail scratch mark or teeth bite. Even there is no evidence that she raised alarm or made complaint to anyone of the vicinity or even the wife of the appellant as she stated that he is residing with his family in his house. From all these evidence, it clearly reflects that the victim was the consenting party in making physical relation with the appellant and had gone with the appellant to his house. 20.PW/5, mother of the victim has stated in her evidence that when her daughter could not return from the market on Sunday, they were in search of her but 14 she came back only on Tuesday. She disclosed that she was being kept by the appellant in his house. She called a Panchayat meeting but the appellant has not come there, therefore, they lodged the report. This witness has turned hostile on the point of giving Police statement and in her cross- examination she shown her ignorance that the report has been lodged on the instance of the Sarpanch of the Village. 21.PW/6, father of the victim has also stated in her evidence that when his daughter has not returned back from the market, they started searching her and on the next day, i.e. on Monday, her daughter came back to her house and informed him about the incident. Thereafter, they called a Panchayat meeting but the appellant has not come in the meeting and then they lodged the report. This witness too has resile from his Police Statement and denied the same. He admitted that when the appellant has not appeared in Panchayat meeting, he along with Sarpanch had gone to the Police Station and lodged the report. 22.PW/7 who is Sarpanch of the village has not supported the prosecution’s case and has turned hostile and he stated in his evidence that he did not know about the incident and no one has informed him about the same. 23.PW/1 who medically examined the victim has not found any external injuries on her body and no sign of any recent intercourse has also been found. Therefore, there is no FSL report produced by the prosecution to prove that the victim was actually subjected to sexual intercourse. 24.From all these evidences, it cannot be said that the prosecution has produced the cogent and clinching evidence to prove the guilt of the appellant that on the day of incident, he kidnapped the victim, procured the minor girl for illicit intercourse and has committed rape upon her. From the evidence produced by the prosecution, it reflects that the victim herself had gone to the house of the appellant and engage in making physical relation with him on her own will. She has not raised any objection and has not tried 15 to save herself. No injuries have been found on the body of the victim which proves that she had not protested on the act of the appellant. Therefore, there is lack of cogent and clinching evidence against the appellant to convict him for the alleged offence. 25.In the result the appeal is Allowed. The judgment of conviction and sentences passed against the appellant are set aside. The appellant is acquitted from all the charges. The appellant is reported to be in jail since 20/08/2019. He be released forthwith if not required in any other case. 26.Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Vijay Singh is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six 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, shall appear before the Hon’ble Supreme Court. 27.The lower 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 Sd/- (Ramesh Sinha) Chief Justice Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.02.25 18:04:13 +0530
Arguments
8. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the offence. No offences are made out against the appellant as alleged. The prosecution has failed to prove its case beyond reasonable doubt. There is no legally admissible evidence produced by the prosecution with respect to the age of the victim so as to hold that on the date of the incident she was minor and below 18 years of age. Although, the School Register of the victim was seized by the Police but in absence of examination of its author, the same cannot be taken into consideration for determination of the age of the victim. No any Kotwari Register, Birth Certificate or Ossification Test report have been filed by the prosecution to hold that the victim was minor on the date of incident. He would further argue that the victim being a major girl, have voluntarily gone along with the appellant and made physical relation with him on her own will. In view of the age and conduct of the victim and also the nature of allegation leveled against the appellant, the alleged offences are not made out against him and he is entitled for acquittal. 9. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the 5 prosecution has proved its case by leading evidence that on the date of incident the victim was minor and less than 18 years of age. For determination of the age of the victim, the prosecution has relied upon the School Register (Ex-P/2c) and the progress report card of Class-5 (Ex-P/19) which is proved by PW/2, who is the Teacher of the school. As per the entries made in the school register, the date of birth of the victim is 05/07/2003.The victim is the minor girl and she was allured by the appellant on the pretext of marriage and made physical relation with her which comes under the definition of rape and therefore the trial court has rightly convicted the appellant and the impugned judgment of conviction and sentence needs no interference. 10.We have heard learned counsel for the parties and perused the record. 11. The first question arose in the case as to whether the victim was minor and less than 18 years of age on the date of incident or not. 12.The prosecution has mainly relied upon the School Register (Ex-P/2c) and the progress report card of Class-5 (Ex-P/19) which is sought to be proved by PW/2, who is the Teacher of the school. The PW/2 has stated in his evidence that he is posted as incharge Head Master of the school since 2018. The police has seized the school register from him vide seizure memo (Ex-P/3) and after retaining the attested true copy of the school register (Ex- P/2c), the original school register (Ex-P/2) was returned back to the school which he brought with him today. As per the entries made in the school register, the date of birth of the victim is recorded as 05/07/2003. In cross- examination, he admitted that the entries have not been made by him in the said school register. He further admitted that Chungarhi is the rural area and most of the parents of students were illiterate and they are not having the birth certificate of their children. He also admitted that the basis on which, the date of birth of the victim is recorded in the school register is not mentioned. 6 He also admitted that if the parents of the children are not able to keep their date of birth, they have got recorded their date of birth on assumption. 13.The Hon’ble Supreme Court has considered the admissibility and evidensonary value of the school register with respect to the age of the victim 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.