Ashish Manger v. State of Sikkim

The Appellant preferred an appeal against impugned Judgment, dated 20-07-2023 and Order on Sentence, dated 25-07-2023, of the Court of the Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim (hereinafter, the “Special Judge”), in ST (POCSO) Case No.11 of 2021 (State of Sikkim vs. Ashish Manger), by which the Appellant was convicted under Sections 9(l), 9(m), 9(n), all punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act”). He was sentenced to undergo rigorous imprisonment for five years each, under each of the sections convicted, which were ordered to run concurrently, with fine imposed under each of the sections and default clauses of imprisonment.

During the course of hearing, Learned Counsel for the Appellant raised the contention that the Learned Special Judge failed to notice during the trial that the Appellant was a minor at Crl.A. No.20 of 2023 2 Ashish Manger vs. State of Sikkim the time of offence. Pursuant thereto, an application under Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter, “JJ Act”), dated 06-11-2023, came to be filed by the Appellant, being I.A. No.01 of 2023 in the said appeal. It was

urged by Learned Counsel for the Appellant that the date of birth of the Appellant is 31-03-1998 and the offence was committed in the year 2015 as appears in the Section 164 of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”) statement of the victim and from the charges framed against the Appellant by the Learned Trial Court on 13-08-2021, rendering him a minor at the time of offence. Consequently, the matter was taken up on 07-11-2023 and on the same date, this Court inter alia ordered as follows; Due consideration has been accorded to the “6. submissions put forth. It is clear that Section 9 of the J.J. Act, more especially, the Proviso to the Section lays down that claim of juvenility may be raised before „any‟ Court and it shall be recognised at any stage, even after the disposal of the case and such a claim shall be determined in accordance with the provisions of the Act and the Rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

7. At this juncture, it is relevant to look at Section 9(2) of the J.J. Act, which provides as follows; “9. Procedure to be followed by a Magistrate who has not been empowered under this Act—(1)…………………………… (2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be: ……………………………………..” In light of facts and circumstances 8. elucidated hereinabove, the legal provisions referred to and in terms of the directions of the Supreme Court in Karan alias Fatiya vs. State of Madhya Pradesh [2022 SCC OnLine SC 1887], it is hereby ordered as follows; Crl.A. No.20 of 2023 3 Ashish Manger vs. State of Sikkim (i) The copies of the Birth Certificate and Transfer Certificate be forwarded to the Learned Trial Court concerned by 08-11-2023 in physical form as well as in digitised form. (ii) The Appellant shall be produced before the Learned Trial Court concerned on 16-11-2023. (iii) The Learned Trial Court shall take steps to consider whether the Appellant was a juvenile on the date when the offence is said to have been committed. (iv) Towards this end, the Learned Trial Court, if so required, may call for and consider all relevant documents as well as have the facility of medical check-up of the Appellant as provided by law. (v) The Report pertaining to such enquiry shall be submitted before the Registry of this Court within four weeks from today.” (i) In compliance thereof, the Learned Special Judge submitted a communication bearing Ref. No.312/PD&SJ, GTK, dated 28-11-2023, with the records of proceedings dated 09-11- 2023 and 16-11-2023 conducted in terms of the said Order, having reached a finding inter alia that; “Giving the benefit of doubt to convict Ashish Manger, the date of incident (for the purpose of computing his age) is taken as the last date of 2017 i.e.,

31.12.2017. On computing the same with his date of birth i.e.,

31.03.1998, it is seen that he was 19 years 9 months old as on

31.12.2017.”

Aggrieved by the conclusion arrived at by the Learned Special Judge, the Appellant filed an objection assailing it, and multi-pronged arguments were canvassed by the Learned Counsel for the Appellant before this Court, viz; (i) That, the report overlooks the fact that the year of offence was 2015, despite the victim having stated so, in her Section 164 Cr.P.C. statement duly corroborated in her cross- examination, while deposing before the Court. That, the Charge framed by the Learned Special Judge on 13-08-2021 against the Crl.A. No.20 of 2023 4 Ashish Manger vs. State of Sikkim Appellant was based on the fact that the offence took place in the year 2015. Relying on Section 60 of the Indian Evidence Act, 1872 (hereinafter the “Evidence Act”) it was contended that the law provides that oral evidence must be direct and that in the instant matter the victim who bore the brunt of the offence is the best witness concerning the year of the offence. On this aspect strength was garnered from the decision of the Supreme Court in Neeraj Dutta vs. State (Government of NCT of Delhi)1. (ii) That, in order to gauge the age of the Appellant the Learned Special Judge has relied on the Section 161 Cr.P.C. statement of witnesses, which is clearly erroneous, in view of the fact that such statement can only be used for the purpose of contradiction and corroboration and it is not substantive evidence. Succour on this count, was placed on the observation of the Hon‟ble Supreme Court in Parvat Singh and Others vs. State of Madhya Pradesh2. (iii) That, the Learned Special Judge sans basis opined that the date of offence as mentioned by the victim before the Learned Magistrate was an incorrect date and that the offence took place in the year 2017. Resisting such observation, Learned Counsel submitted that the year 2017 was mentioned only in the Charge- Sheet and the deposition of the Investigating Officer (IO) PW-10, which is not substantive evidence and lacks corroboration and ought to have been disregarded by the Learned Special Judge. Attention of this Court was invited to the decision of the Supreme Court in Rajesh Yadav and Another vs. State of Uttar Pradesh3 wherein it was held that;