VAIBHAV v. State Of Chhattisgarh Through Police Station Kawardha, District Kabirdham, (C.G.)

Judgment

1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, against the judgment of conviction and sentence passed by learned Special Judge, Protection of Children form Sexual Offenses Act, (for short ‘POCSO’), FTC Court, Kabirdham in Special Criminal Case No.97 of 2018, vide judgment dated 07.11.2019, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 363 of IPC : R.I. for 4 years and fine of Rs. 500/- in default of payment of fine further 2 R.I. for 1 month. Under Section 366 of IPC : R.I. for 4 years and fine of Rs. 500/- in default of payment of fine further R.I. for 1 month. Under Section 376(2)(n) of : R.I. for 10 years and fine of Rs. IPC 3000/- in default of payment of fine R.I. for 4 months Under Section 6 of the : R.I. for 10 years and fine of POCSO Act Rs.3000/- in default of payment of (All the sentences were directed to run concurrently.) fine R.I. for 4 months.

The brief facts of the case are that on 09.01.2018 the mother of the victim PW-8 has lodged a missing report to the police that her minor daughter is missing since 16.01.2018, and she is being kidnapped by the appellant, which has been informed to her by her younger daughter. The police has registered the offence Under Section 363, &366 of IPC vide F.I.R. Ex.-P/11 and started investigation. During the investigation the victim was recovered on 19.01.2018 from the possession of the appellant and recovery panchnama Ex.P/1 was prepared in presence of the witnesses. The victim was sent for her medical examination to District Hospital – Kawardha, where PW-7, Dr. Archana Kashyap, has medically examined her and gave report Ex. P/10. During her medical examination doctor has not noticed any external injuries on her body and found that she is habitual to sexual intercourse. Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. The victim was also referred to radiologist for her age confirmation. With respect to the date 3 of birth and age of the victim, the police has seized, the school register from Government Middle School, Marpa, vide seizure memo Ex. P/6 and after retaining the attested true copy of the school register Ex.P/7C, the original register was return back to the school. The spot map Ex.P/2 was prepared by the police and Ex.P/3 was prepared by the Patwari. The underwear of the victim has also been seized vide seizer memo Ex.P/5, the appellant was arrested on 07.12.2018 and he too was taken for medical examination to District Hospital – Kawardha where he was also examined by the doctor who found him capable to perform sexual intercourse. The vaginal slides and underwear of the victim and the underwear of the appellant were sent for its chemical examination to State FSL, Raipur from where report Ex.P/20 was received and according to the FSL report, semen and sperms were found on the sent articles.

3. Statement of the witnesses under Section 161 of Cr.P.C. and Statement under Section 164 of the Cr.P.C. of the victim has been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for the offence under Sections 363, 366 &, 376 of I.P.C. and Section 4 of POCSO Act, before the learned trial Court.

4. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 366 & 376(2)(n) of I.P.C. and Section 6 of POCSO Act, the appellant abjured his guilt and claimed trial.

5. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. The statement of the appellant under Section 313 of Cr.P.C. has been recorded in which he denied the circumstances appears against him, plead innocence and has 4 submitted that he has been falsely implicated in the offence. He gave Rs.15,000/- to the mother of the victim from his own income and when he asked her mother to repay the same, she threatened him and lodged false report against him.

6. 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.

7. 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 witnesses. There is no cogent and clinching evidence with respect to age of the victim that she was minor on the date of incident. The School admission and discharge register is not admissible in absence of examination of its author as well as the basis on which the entries have been made in it. The prosecution has utterly failed to prove both these ingredients. He would further submit that the victim is major girl and having love affair with the appellant and she herself on her own will eloped with him and resided for a considerable period without raising any objection and without making any protest. She was the consenting party in making physical relation with the appellant and therefore, no offence either under the IPC, or under the POCSO Act, are made out and the appellant is entitled for acquittal.

8. On the other hand learned counsel for the State opposes the submissions made by learned counsel for the appellant and submitted that the minor victim was sexually exploited by the appellant. The age of the victim has been proved by the School register which has been 5 proved by PW-5 who is the headmaster of the school. The minor victim was subject to sexual intercourse by the appellant after kidnapping her and keeping her with him which does amounts to offence of rape. The prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of prosecution witnesses are fully reliable and further that the evidence of the victim does not require any corroboration. Even if, there is no injuries found on the body of the victim, it is not necessary in each and every case and it depend upon the facts and circumstances of the each case. In the present case the victim is found to be minor and she was subjected to sexual intercourse. therefore, learned trial Court has rightly convicted and sentenced the appellant which needs no interference.

9. I have heard learned counsel for the parties and perused the record of the case.

10. The first and foremost question arises for consideration as to whether the victim was minor on the date of incident or not. The prosecution has mainly relied upon school register Ex.P/7-C which is sought to be proved by PW-5, who is the headmaster of the school. He stated in his evidence that he is headmaster of the Government Middle School, Marpa, since 2011. The police has seized the school register with respect to the date of birth of the victim and the seizure memo is Ex.P/6. After retaining the attested true copy of the school register Ex.P/7-C, the original register Ex.P/7 was return back to the school. According to the school register, the date of birth of the victim is

12.10.2003, which is recorded by him in the said school register. In cross-examination, he admitted that the school register Ex.P/7 is not certified by the seal and signature of its author. He admitted that at the 6 time when the school register Ex.P/7 was prepared, he was not posted in the school. The date of birth of the victim was recorded in the school register on the basis of her transfer certified but there is no endorsement in the school register that her date of birth was recorded on the basis of transfer certificate. He also admitted that there is no initial of the teacher who has got recorded her date of birth in the school register. He further admitted that they are recording the date of birth of the child in the school on assumption whose parents are not able to disclose the exact date of birth. This witness has further stated that the teacher of the primary school could have explained the basis on which they have recorded the date of birth of the victim in the school register.

11. From the evidence of this witness, it appears that though this witness have claimed in his chief-examination that he is the author of the school register but in the cross-examination, he admitted that the date of birth of the victim was recorded on the basis of transfer certificate, there is no transfer certificate annexed with the school register. The said school register Ex.P/7C is of class 6 and there is no any documents on her initial schooling.

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 7 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:- "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 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 8 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 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 9 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.

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 10 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 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: 11 “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 except the said school register no other documentary evidence led by the prosecution to prove the date of birth of the victim. The victim PW-6 has stated in her evidence that her date of birth is 12.10.2003 but in cross-examination she admitted in para 13 that she disclosed her date of birth on the basis of school record. She further admitted that her exact date of birth is to be known by her parents. From the evidence of the victim herself she disclosed her date of birth on the basis of school record but there is no school record of her initial schooling and the school register Ex.P/7C is of class VI, since there is no basis to record the date of her birth in the school register of class VI, it can not taken into consideration that it is the correct date of her birth.

16. PW-3, father of the victim have stated in his evidence that the age of his daughter is 14 years, he could not remember her date of birth. His wife had gone to school for her admission.

17. Except this, he did not disclose any other fact which can be taken into 12 consideration for determination of her age. PW-8, mother of the victim has stated in her evidence that her daughter is aged about 15 years and her date of birth is 10.12.2003. In cross-examination she stated that the maternal grandfather of the victim has taken her for admission in the school. She admitted that they are not having any birth certificate of the victim, she voluntarily stated that they took the date of birth from Anganwadi and given it to the school. She further admitted that she could not know the date of birth of her daughter and she even did not know her own date of birth. From these evidences when there are variations in the date of birth of the victim, the father has stated that she is 14 years and her mother stated that she is 15 years of age and her date of birth is 10.12.2003, whereas the victim has stated that her date of birth is 12.10.2003. In these circumstances, it can not said that the witnesses are consistent in stating about the age of the victim and there is no other evidence like Kotwari, register, birth certificate or any ossification test report. Therefore, it can safely be hold in the present facts and circumstances of the case that the prosecution has failed to prove the fact that the victim was minor and less than 18 of age on the date of incident.

18. So far as the evidence of kidnapping and rape is concerned the victim PW-6 has stated in her evidence that on 16.01.2016 when she along with her sister were going to school, on the way the appellant met her, proposed her that he is loving her and wanted to marry with her. By giving allurement he took her to village Joratal, where he committed rape upon her for 3-4 days. Some how she came out from the clutches of him and then went to the police station. At police station her family 13 members had come and she disclosed the incident. In the cross- examination, she admitted that the appellant was residing just back side of her house. She denied by giving her police statement that on being asked by Manoj, they left her sister to the house of her maternal uncle. She further admitted that she did not disclose the police persons that she was shouted when she was taken by the appellant and she admitted that she is stating first time before the Court that she shouted when she was being taken by the appellant. She admitted that while residing in the house of the appellant, she neither made any complaint to any one nor raised any alarm. She further stated that she has not made any effort to come out from the house of the appellant. She further admitted that she has made her signature on Ex.P/1 on the instance of the police persons and she did not know what was written in that document. From the evidence of this witness, it appears that when the appellant took the victim with him, she has not raised any alarm and even while residing with his house she has not tried to save herself and has not made any complaint on the way to his house or even during her stay in his house. She has not raised her objection. Even her parents have not lodged any missing report for about 3 days, when she has not return to her house particularly when her sister was there at the time when she was allegedly kidnapped by the appellant. Her evidence is not of that sterling quality which is required for making conviction of the appellant for the alleged offence. PW-1 and PW-8, father and mother of the victim have stated in their evidence that they are disclosing the fact on the basis of information given by her daughter.

19. PW-7 Dr. Archana Kashyap, who medically examined the victim has 14 not found any external injuries and also no any sign any protest or struggle were noticed. Even it is not the case of the victim that while making physical relation by the appellant with her, she tried to save herself by giving nail scratch mark or teeth bite on the body of the appellant. Therefore, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubts against the appellant and the appellant is entitled for benefit of doubt.

20. In the result the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentences is hereby set aside. The appellant is acquitted from the alleged offences. The appellant is reported to be in jail since 07.12.2018, He be released forthwith if not required in any other case.

21. 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.

22. 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