Nafr High Court
Case Details
1 2025:CGHC:11549 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1751 of 2019 1 - Dharamdas Mahant S/o Sadhudas Mahant Aged About 21 Years R/o Sivni Police Station Champa, District Janjgir-Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh versus ... Appellant 1 - State Of Chhattisgarh Through Police Station Champa, District Janjgir- Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh ... Respondent For Appellant For Respondent(s) : : Mr. Atul K. Kesharwani, Advocate. Mr. Atanu Ghosh, Dy. Govt. Advocate. Hon'ble Mr. Justice Ravindra Kumar Agrawal Judgment on Board 07/03/2025 1. Challenge in this appeal is to the judgment of conviction and sentence dated 03.10.2019 passed by Special Judge (Protection of Children from Sexual Offences Act, 2012) in Special Sessions Case No. 04/2018 whereby the appellant has been convicted under Section 376 (2)(i) and (n) of the IPC and sentenced to undergo rigorous imprisonment for 10 years, with fine of Rs. 1,000/-, in default of payment of fine, to further undergo imprisonment for three months. 2. Case of the prosecution, in brief, is that victim (PW-1) is residing in the house of her maternal aunt (Bua) since 5-6 years back. While residing in 2 her maternal aunt's house, his cousin brother (appellant) had committed rape upon her repeatedly after giving allurement of marriage with her, by which, she conceived pregnancy and when she informed her pregnancy to the appellant, initially he was ready to accept her, but subsequently refused to accept her. She went back to her mother and informed about the incident and then she lodged written report (Ex.P-1) on 15.11.2017 to
Facts
the Police. On the basis of written report lodged by the victim, FIR (Ex.P- 2) was registered against the appellant under Section 376 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (henceforth, 'POCSO Act'). The victim was sent for her medical examination to B.D.M. Hospital, Champa where Dr. Sarita Nagrachi (PW- 3) has medically examined her and gave her report (Ex.P-7). While medically examined the victim, no external injuries have been found on her body and found that she was carrying pregnancy of about 7 ½ months. Spot map (Ex.P-4) was prepared by the police. With respect of age and date of birth of the victim, School Register has been seized from the Govt. Girls School, Seoni vide seizure memo (Ex.P-16) and after retaining its attested true copy (Ex.P-8c), original school register was returned back to the School. A certificate issued by the Headmaster of the School (Ex.P-9) has also been seized. The appellant was arrested on 17.11.2017 and he too was sent for his medical examination to BDM Hospital, Champa, where he was also medically examined by Dr. Hemendra Jaiswal, who after his medical examination, found capable to perform sexual intercourse. Statement of the witnesses under Section 161 of the Cr.P.C. and statement of the victim under Section 164 of the Cr.P.C. (Ex.P-5) have been recorded and after completion of usual investigation, charge-sheet was filed before the trial Court for the offence under Section 376 of the IPC and Section 6 of the POCSO Act. 3 3. The trial Court has framed charge against the appellant-accused for the offence under Section 6 of the POCSO Act, in alternative, under Section 376 (2)(i)and (n) of the IPC. The appellant denied the charge and claimed trial. 4. In order to prove the charge against the accused/appellant, the prosecution has examined as many as 8 witnesses. The statement of the accused / appellant was also recorded under section 313 of Cr.P.C., in which he denied the circumstances appears against him, plead innocence and stated that he is innocent and has falsely been implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, learned trial court has convicted and sentenced the appellant, as mentioned in earlier part 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:- 6 "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 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:- obtaining for marriage; "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; an appointment; for contesting election; registration of 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 constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 7 12. 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 case is the age of the person as a juvenile sought before the JJ Board when 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 proceeding where the determination and declaration of from that required in a 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 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.
Arguments
6. Learned counsel for the appellant would argue that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradiction in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. The prosecution has failed to prove age of the victim that she was minor on the date of incident by leading cogent and clinching evidence and the School record produced by the prosecution has not been proved in accordance with law. Further there is manipulation in the school record to the effect that earlier some other name was recorded in the School record, but after striking out, other name has been substituted, that too, the same was not the name of mother of the victim, who has been examined as PW-2. In absence of any cogent & clinching evidence, age of the victim cannot be determined that she was minor, particularly, in the evidence of the witnesses, it comes on record that she was more than 18 years of age. 4 He further submits that the prosecution has failed to prove its case that the victim conceived from the appellant's side, as no DNA test has been conducted by the prosecution to connect the appellant with the pregnancy of the victim. He would further submit that evidence of the victim as well as other evidence are not corroborative and, therefore, by extending the benefit of doubt, the appellant may be acquitted for the alleged offence. 7. On the other hand, learned counsel for the respondent / State while opposing the submission made by counsel for the appellant would submit that the prosecution has proved its case beyond reasonable doubt, but for minor omissions and contradiction, evidence of the prosecution witnesses are fully reliable. Evidence of the victim does not require any corroboration, yet there is corroborative evidence available on record that the appellant has committed rape upon her while she was residing in her maternal aunt's (bua) house. The appellant is her cousin brother and by the act of the appellant, she conceived pregnancy. He would further submit that in every case DNA test is not required, particularly, when the appellant has not taken the defence that victim conceived pregnancy from some other one and not from the appellant. The age of the victim has been proved by the School Register as well as certificate (Ex.P-8c) & (Ex.P-9), by which, she was found to be minor on the date of incident, therefore, learned trial Court, after appreciation of evidence available on record, has rightly convicted and sentenced the appellant, which needs no interference. 8. I have heard learned counsel appearing for the parties and perused the judgment impugned including record of the court below. 5 9. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident, she was minor and less than 18 years of age or not. 10. The prosecution has mainly relied upon school register (Ex.P-8c) and Certificiate (Ex.P-9), which is sought to be proved by In-charge Head Master of the School (PW-5). He has stated in his evidence that he is posted as Incharge Headmaster of the School since 01.05.2005. The police has seized school register with respect to age of the victim and retaining its attested true copy (Ex.P-8c), original school register was returned back to the School, which he brought today with him. As per school register, date of birth of the victim is 15.8.2006 and he issued such certificate (Ex.P-9). In cross-examination, he admitted that entries in the School Register has not been made by him, he also admitted that, who have made entries with respect to date of birth of the victim in the school register, he did not know. 11.The admissibility and evidencery value of the School Register has been considered by 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, in which the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P-16 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.
Decision
order 8 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." 13. 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 of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given 9 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." 14. Reverting to the facts of the present case, Victim (PW-1) has stated that she could not remember her date of birth, but her year of birth is 2006. In cross-examination, she admitted that though she could not remember her date of birth, but she disclosed her year of birth on assumption. She admitted that she attains the age of 18 years and her friends have already married. 15. Mother of the victim (PW-2) has stated in her examination-in-chief that the victim is presently aged about 18 years. In cross-examination, she too has stated that she did not know her date of birth. Ganesh Mahant (PW-6), who is the step father of the victim, has stated in his evidence that the victim is aged about 19-20 years. 16. From the perusal of evidence of aforesaid witnesses, when it comes that the victim (PW-1) herself did not know her date of birth and she stated in her 10 evidence that she has attained the age of majority i.e. 18 years, her mother and step father have also did not disclose her date of birth. Her mother too has stated that the victim has completed her 18 years of age whereas her step father has stated that victim is aged about 19-20 years at the time of incident. Further, from the school record, it reflects that in the School record (Ex.P-8c), initially the name of some other person was entered, which has been struck out and the name of father of the victim was mentioned, however, another name has also been mentioned as mother of the victim, but the name of the mother mentioned in the School Register (Ex.P-8c) and the name PW- 2 are different, which has not been explained that PW-2 has also known by the same name, which has been mentioned in the School Register or the name shown in School Register (Ex.P-8c) is also the second name of PW-2. Therefore, it is very difficult for this Court to hold that the prosecution has proved the age of the victim by leading cogent and clinching evidence that the victim was minor on the date of incident, yet, learned trial Court has held her minor. 17. So far as offence of rape is concerned, I again examined the evidence of the victim (PW-1). She stated in her evidence that since last 5-6 years, she is residing in her maternal aunt's (Bua) house. The appellant, who is cousin brother of the victim, has committed rape upon her repeatedly since last 5-6 months on the pretext of marriage. She disclosed the incident to her mother and, thereafter, she lodged the report to the police and she was medically examined by doctor. In cross-examination, she admitted that the parents of the appellant has taken their liability of her nurture in future. She also admitted that she has lodged the report at the instance of her parents and community members. When it has been clarified by the Court that as to whether the appellant has committed any wrong with her or not, then she has 11 disclosed correct facts in her cross-examination stating that appellant has not committed any wrong with her. Though Online statement has been made by her in her cross-examination, the appellant has not committed any wrong with the victim, but in her examination-in-chief, she has categorically stated that she was subjected to sexual intercourse by the appellant for the last 5 -6 months on the pretext of marriage. Dr. Sarita Nagrachi (PW-3), who medically examined the victim on 15.11.2017 found that the victim was carrying pregnancy of 26-28 weeks and that has not been challenged in her cross- examination. 18. When the victim in her examination-in-chief has deposed against the appellant that he was being sexually exploited by the appellant since last 5- 6 months on the pretext of marriage, the appellant is her cousin brother, in whose house, she was residing. She also stated that after disclosing the incident to her mother, she has lodged report and medically examined by the doctor. In her medical examination, it is found that the victim was carrying pregnancy of about 26-28 weeks, therefore, one line statement of her in her cross-examination that the appellant has not committed any wrong with her does not make her entire statement doubtful and it appears that she won over by the appellant, as the parents of the appellant assured her that they will take care of her in future. 19. Mother of the victim (PW-2) has stated in her evidence that her daughter (victim) was residing in her sister-in-law’s house. 4-5 months back, her daughter has informed that the appellant has committed rape upon her and, thereafter, she took her to police station where she lodged report against the appellant. In cross-examination, the same question has been asked from her also that appellant has not committed any wrong with her daughter, and the parents of the appellant had taken the responsibility of her daughter that they will take her care. 12 20. Ganesh Mahant (PW-6), who is step father of the victim, has stated in his evidence that he did not know the victim and when he was cross-examined by the prosecution, he stated that he has married with PW-2, who is having a daughter and her name is xxxx (PW-1). He admitted that real father of the victim had gone to Delhi to earn his livelihood. He also admitted that victim has informed his wife that her cousin brother (appellant) has committed rape upon her, for which they asked the appellant to keep her with him, but he refused for the same and, thereafter, they lodged the report. In cross-examination, he admitted that he and his family members were of the view that the appellant to perform marriage with the victim, but mother of the appellant refused for the same and, thereafter, they lodged the report against the appellant. 21. From the evidence of the aforesaid witnesses, it is quite vivid that while residing in the house of the appellant, the victim was subjected to sexual intercourse by the appellant, by which, she conceived pregnancy and when the appellant was asked to keep her with and to perform marriage with her, he refused for the same and then the report has been lodged. 22. From the nature of evidence, it also appears that there was some negotiation to take care of the victim in future and for that reason, she disclosed in her cross-examination that appellant did not do any wrong with her. But fact remains that, while residing in her maternal aunt’s House (Bua), she conceived pregnancy and it is not the case of the appellant that she conceived pregnancy from any other person. 23. The evidence available on record clearly suggests that it is the appellant, who made physical relation with the victim, by which, she conceived pregnancy. 24. Since the victim is not found to be minor and she was major on the date of incident, but she was subjected to rape by the appellant repeatedly, which comes under the definition of Section 376 (1) of the IPC. However, offence of the appellant does not come under Section 376 (2)(i) and (n) of the IPC. But 13 the aforesaid act comes under the definition of Section 376 (1) of the IPC. Offence under Section 6 of the POCSO Act is also not made out against the appellant, as she was not found to be minor. 25. Consequently, conviction and sentence imposed upon the appellant under Section 376 (2)(i) and (n) of the IPC and Section 6 of the POCSO Act are hereby set aside and instead thereof, the appellant is convicted for the offence Section 376 (1) of the IPC and sentenced to undergo rigorous imprisonment for seven years with fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for one month. 26. with the above modification, the appeal is partly allowed. 27. The appellant is reported to be in jail since 17.11.2017, therefore, he is entitled for set off of his undergone period during trial as well as during pendency of the appeal. 28. The trial Court record alongwith a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/ (Ravindra Kumar Agrawal) Judge amita Digitally signed by AMITA DUBEY Date: 2025.04.02 15:26:21 +0530