Lochan Yadav S/o Channu Yadav Aged About 20 Years R/o Rajakhujji, Police Station v. State Of Chhattisgarh Through Police Chouki- Urla, District Raipur, Chhattisgarh
Case Details
1 2025:CGHC:6410 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1363 of 2021 Lochan Yadav S/o Channu Yadav Aged About 20 Years R/o Rajakhujji, Police Station -Dongargarh, District Rajnandgaon, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through Police Chouki- Urla, District Raipur, Chhattisgarh. ---- Respondent -------------------------------------------------------------------------------------- For Appellant : None. For Respondent-State : Ms. Prabha Sharma, PL -------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 04.02.2025 1. This criminal appeal has been preferred by appellant against the judgment of conviction and order of sentence dated 21.09.2021, passed by learned Session Judge, Raipur, (CG) in POCSO Case No.56/2016, whereby the appellant stands convicted and sentence as under: Conviction Sentence Section Under 363 of IPC Rigorous imprisonment for 03 years & fine of 500, in default of 2 payment of fine 02 months additional SI. Section Under 366 of IPC RI for 05 years & fine of Rs. 500, in default of payment of fine 03 months additional SI. Under Section 376(2) of IPC & Section 4 & 6 POCSO Act. RI for 10 years & fine of Rs.1,000, in default of payment of fine 03 months additional SI. 2. No one appeared on behalf of the appellant, in pre-lunch session when the matter was called out for hearing, therefore, I requested for assistance from the Counsel of the High Court
Legal Reasoning
Legal Services Committee. Mr. Prasoon Agrawal, is nominated to assist the Court on behalf of the appellant. 3. The prosecution case, in brief, is this that on 17.11.2015 complainant (maternal uncle of victim/prosecutrix) lodged missing report to the concerned Police Station mentioning therein that minor victim went out from the house without intimating anything to her family members and did not return back. Based upon report, initially the Police registered the FIR for offence under Section 363 of IPC against unknown person. During investigation, prosecutrix was recovered from the possession of present appellant. Her statement was recorded and, based upon which, appellant/accused was arrested in aforementioned crime. 3 4. On completion of investigation, challan/charge-sheet was filed and based upon which, learned Court below has framed the charges against the appellant. 5. Prosecution in order to prove its case examined total 17 witnesses, however, appellant has examined only two witnesses in his defence. Statement of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. 6. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal. 7. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record as the Court below has failed to appreciate the evidence of prosecution in its true perspective. Victim in her evidence has specifically deposed that she voluntarily left the house and accompanied with appellant because they were in love relationship. She further stated that they solemnized the marriage the temple (Mandir). As per case of prosecution, age of the prosecutrix was 16 years at the time of alleged incident, but no authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. Though 4 the date of birth of prosecutrix mentioned as 04.11.1999 in Dakhil Kharij Register (Ex.P-12), but prosecution did not produce the birth certificate or any other relevant documents to prove the DOB of prosecutrix. PW-2/mother and PW-4/maternal uncle of prosecutrix in their evidence have specifically stated that they did not remember the date of birth of prosecutrix. Learned Counsel further submits that though there is allegation of rape against the appellant, but the Doctor/PW-08 in his evidence has not given any definite opinion regarding rape or forcefully sexual intercourse upon the victim as no injuries of forceful intercourse were found on the body of victim. Looking to the entire facts and testimony of the prosecution witnesses, the whole prosecution story has become untrustworthy. As such, the impugned judgment of conviction recorded and sentence awarded deserves to be set-aside. 8. On the other hand, learned counsel for the State supporting the impugned judgment and submits that the prosecutrix was a minor girl on the date of incident and this fact has been duly proved by the prosecution by adducing oral and documentary evidence, therefore, her consent is irrelevant. Prosecutrix was subjected to forcible sexual intercourse by appellant. Being so,
Decision
the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed. 9. Heard learned counsel for the respective parties and perused the recorded placed on record. 5 10. Now this Court has to see whether the prosecution has been able to prove that on the date of incident prosecutrix was minor. The prosecution has heavily relied upon the entry made in Dakhil-Kharij of class -6 and progress report of class -7th, regarding date of birth of prosecutrix. Though in the said documents, her date of birth is recorded as 04.11.1999, but prosecution did not produce the birth certificate or any other relevant documents to prove the DOB of prosecutrix. Further, prosecution did not produce the Dakhil kharij of class -1st standard. PW-6/Anand Sharma (Headmaster of prosecutrix’s school) in his evidence has stated that on the basis of Dakhil Kharij Panji of class-6th, DOB of prosecutrix is 04.11.1999. Dakhil-Kharij of class -6th and progress report of class -7th are the week types of evidence. Further, no ossification test of the prosecutrix has been conducted to ascertain her age. The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment 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 6 prove the age of the girl in the absence of the material on the basis of which the age was recorded. 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:- therein or "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 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 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 constitutional right 7 under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 11. In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court 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 In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court observed in para 33 as under: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 8 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 In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme Court observed in para 33 as under: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 9 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.” 12. In the case of P. Yuvaprakash versus State Rep. By Inspector of Police, AIR 2023 SC 3525, the Hon'ble Supreme Court observed in para 13 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; 10 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 absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 13. In light of aforesaid decisions of the Hon'ble Supreme Court, this Court is of the view that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, this Court set aside the finding so recorded by the learned trial Court and hold that the prosecution has not been able to prove successfully that on the date of incident she was minor. 14. Now coming to the point whether the appellant has committed rape with the prosecutrix ? 15. PW-1/Prosecutrix/victim in her Court statement has stated that she used to talk with the appellant/accused by the mobile phone. On the date of alleged incident, she had gone to house of her maternal uncle at village Birgaon, from there she eloped with the appellant/accused to Rajnandgaon. She also admitted that she resided with the appellant at rented accommodation about 18 days, where appellant/accused has established physical relation 11 with her daily. The statement of the victim is supported by her mother/PW-2. 16. PW-8/Dr. Pratiksha Chuahan (medical officer) in her deposition has stated that no injury has been found on the body of prosecutrix during examination. She opined nothing with regard to recent sexual intercourse upon the prosecutrix. 17. In view of the above evidence, it is clear that the prosecutrix was a consenting party in this case to the act of the accused. 18. Since this Court has already observed that the prosecution has failed to prove that on the date of incident she was minor, in the given set of facts and circumstances of the case, no offence of rape or abduction is made out against the appellant. 19. In the result, the appeal is allowed and the impugned judgment dated 21.09.2021 (Annexure A-5) is hereby set aside. The appellant is acquitted from the aforementioned charges. He is reported to be in jail since, therefore, he be set free forthwith if not required in any other case. 20. Keeping in view the provisions of Section 437-A of CrPC, the appellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.10,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon'ble Supreme Court. 12 21. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) JUDGE J/-