Birendra Yadav vs State Of Chhattisgarh

Ravindra Kumar Agrawal, J

This appeal arise out of the judgment of conviction and sentence dated 16.08.2023 passed by the Special Additional Sessions Judge, Khairagarh in Special Sessions Case No.07/2021, whereby the appellant has been convicted for the offences under Sections 363, 366, 376 (2)(j)(n) and 376(3) of IPC and Section 5(l)/6 of the POCSO Act and sentenced to undergo RI for 7 years and fine of Rs.500/- and RI for 10 years and fine of Rs.500/- with default stipulations. Since RI for life imprisonment and fine of Rs.1000/- has been awarded for the offence under Section 5(l)/6 of the POCSO Act, no separate sentence has been awarded for the offence under Sections 376(2)(j)(n) and 376(3) of IPC.

Brief facts of the case is that on 29-04-2019 at about 18.30 hours the father of the prosecutrix Mahesh Kumar Sahu, PW-1, has lodged a missing report to the Police of Police Station, Chhuikhadan, District Rajnandgaon that her younger daughter, the prosecutrix (PW-2) is missing from 27-04-2019 at about 7-30 in the morning and she has not returned till evening. Upon his search in his relatives house, her whereabouts could not be traced out. Her daughter is aged about 15 years and her date of birth is 9-4-2004. It is also reported that some unknown person has allured and abducted her daughter. The physic and wearing clothes have been described and when he could not trace her whereabouts, he came to the Police Station to lodge a report.

The police registered an FIR, Ex.P-1, against the unknown person for the offence under Section 363 of I.P.C. and started investigation. Spot map Ex.P-2 was prepared by the investigating officer. During the course of investigation, the prosecutrix was recovered from the house of the appellant on 12-12-2020. Panchnama was prepared vide Ex.P-12 in presence of the witnesses. The prosecutrix was sent for medical examination to the Community Health Centre Chhuikhadan on the same day i.e. 12-12-2020 where Dr. Nikita Giripunje, PW-6, examined her and submitted her report vide Ex.P-10. The appellant was also sent for medical examination to Community Heath Centre, Chhuikhadan from where he was referred to Community Health Centre, Gandai, District Rajnandgaon, where he was also examined and report Ex.P-13 was obtained by the Police. The accused was arrested on 12-12-2020.

The statement of the prosecutrix as well as the witnesses were recorded under section 161 of CrPC. The statement under section 164 of CrPC of the prosecutrix was also recorded. School admission and discharge register of the prosecutrix was seized on 30-12-2020 from Govt. High School, kutelikala, vide seizure memo Ex.P-7 and after retaining the true copy of the same, the original register was returned back to the school. In the school admission and discharge register, Ex. P-9, the date of birth of the prosecutrix is mentioned as 9-4-2004. Since the prosecutrix delivered a male child, the DNA test of the prosecutrix, appellant and their child were conducted by the prosecution after due permission of the competent authority. After completion of investigation, charge sheet under Sections 363, 366, 376(2)(n) of I.P.C. and Section 5(l) of the POCSO Act was filed before the learned Special Judge (POCSO Act), Khairagarh. On 17-3-2021, the learned Trial Court framed charges under Sections 363, 366, 376(2)(j)(n) of IPC and Section 5(l)/6 of the POCSO Act. The accused abjured his guilt and plead innocence. Subsequently, on 24-7-2023, the charges have been amended with the consent of both the parties and charges under Sections 363,366,376(2)(j)(n),376(3) of IPC and Section 5(l)/6 of the POCSO Act have been framed and they have pleaded no further examination in chief or cross examination of the witnesses who were already examined and cross examined.

In order to establish the charge against the appellant, the prosecution examined 13 witnesses. The statement of the appellant was also recorded under section 313 of CrPC in which he denied the material appearing against him and stated that he is innocent and he has been implicated in a false case.

After appreciation of the evidence available on record, the learned Trial Court has convicted the accused appellant and sentenced him as mentioned in para 1 of this judgment. Hence this appeal.

Learned counsel for the appellant has argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of the author of the school admission and discharge register, the same can not be taken into consideration for determination of the age of the prosecutrix. No any kotwari register or ossification report are produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the prosecutrix and the appellant were having love affair since 2-3 years back from the date of lodging of FIR and she herself accompanied with the appellant and both of them went to Pune where they got married in a Temple and resided together as husband and wife for about one year. When she conceived pregnancy, they came to village Salhekasa where they were living together. Out of their wedlock, their child was born. Thus, the prosecutrix was a consenting party and no complaint has been made by her to any one regarding forceful sexual intercourse or any false promise of marriage. Hence, the alleged offence of IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal.

On the other hand, the learned counsel for the State opposes and contended that the prosecutrix was minor and below 18 years of age at the time of incident which is proved by the school admission and discharge register, Ex. P/9 which contains the date of birth of prosecutrix as 09.04.2004. The School register is the admissible evidence to determine the age of prosecutrix. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The prosecutrix was abducted by the appellant and keeping away from the lawful guardianship and performed marriage with her and procured child which is the exploitation of the minor prosecutrix and therefore, the impugned judgment of conviction and sentence needs no interference.

We have heard the learned counsel for the parties and perused the records with utmost circumspection.

In order to consider the age of the prosecutrix, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the school admission and discharge register, Ex.P/9 which is proved by PW-3, Ram Narayan Verma, who is the incharge Head Master of Govt. High School Kutelikala. The said register is the only piece of evidence to establish the age of the prosecutrix. Neither any kotwari register or birth certificate of the prosecutrix is filed nor her ossification test was conducted. Although, in the school admission and discharge register Ex.P/9, the date of birth of the prosecutrix is mentioned as 9-4-2004, but the incharge Head Master PW-3, who issued the copy of the school register and from whom the said register is seized, has stated that the school register was seized from him vide Ex. P-7 and the true attested copy of the school register is Ex.P-9. On query being made that on what basis the date of birth of the prosecutrix is recorded in the school register, there was no reply on behalf of PW-3, though he admits that normally the villagers have recorded their ward’s date of birth on assumption. He further deposed in paragraph-3 that he doesn't know on what basis date 9-4-2004 is recorded as the date of birth of the prosecutrix.

PW-1, Mahesh Kumar Sahu, the father of the prosecutrix, declared hostile and nothing has been disclosed in his examination in chief with respect to the age or date of birth of the prosecutrix. In cross examination, he stated that initially, his daughter has studied for 2-3 years in the Awantibai School, Kutelikala and thereafter she left the school. Subsequently, she got re-admission in class 1 at government school. In paragraph 7 he has stated that at the time of re-admission in the school, he did not disclose the age of his daughter and the Teachers have recorded her age on assumption. He further admits that her daughter’s age was 18 years and he was in search of groom for her. Since, there was dispute ensued with her, she left the house without informing anyone.

PW-2, the prosecutrix, has also not disclosed her date of birth in her examination in chief. She said in her examination in chief that she could not remember her date of birth. She knew the appellant since 2-3 years back and fallen in love affair with him and ultimately they went to Pune because they wanted to marry each other. They got married at Pune in a Temple and earned their livelihood for about one year. When she became pregnant, they came back to village Salhekala and celebrating their marital life. After some time, the police came there and have taken them to police station from where the prosecutrix returned back to her parents house and the appellant was arrested by the police.

The prosecutrix was also declared hostile. In cross examination she admits that she studied for 2 years at Awantibai School Kutelikala and thereafter left her studies. Thereafter, again she got re-admitted in class 1 at Govt. School and this is the reason that her date of birth mentioned in the school admission and discharge register is lesser. She further admits that when she attains the age of 18 years and her father was in search of groom, then some altercation took place between them and she fled away from her house because she was in love affair with the appellant and wants to marry with him. She further admits that after attaining the age of 18 years, she performed marriage with the appellant and out of their wedlock, their son is born who is presently aged about 6 months.

In case 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 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.

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 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."

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"."

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.

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 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."

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 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.

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.”

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 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.

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.”

In the instant case neither the prosecutrix nor her father have given any date of birth of the prosecutrix nor the Headmaster of the school has deposed that he has made the entry in the school register and on the basis upon which the entry was made. The author of the document of the school admission and discharge register, Ex.P/9 has not been examined. There is no other evidence available on record to hold that the date of birth of the prosecutrix was 9-4-2004 or she was less than 18 years of age at the time of incident.

PW-7, Gonda Bai, the mother of the prosecutrix, has also not stated the date of birth of the prosecutrix. She would be the best witness to disclose the exact date of birth of the prosecutrix. She has also been declared hostile and not supported the case of the prosecution.

Thus, after considering the evidence available on record with respect to the age of the prosecutrix, this court is of the opinion that the learned trial court has committed an error in holding that the prosecutrix was less than 18 years of age at the time of incident.

Now the second issue involved in the case is as to whether the prosecutrix was subjected to forceful sexual intercourse by the appellant or not?

We have carefully perused the statement of the prosecutrix recorded under section 161 of CrPC, Ex.D/2, as well as Section 164 of CrPC, Ex.P/6. The 161 CrPC statement of the prosecutrix was recorded on 12-12-2020 in which she has stated that she was in love affair with the appellant Birendra and wants to marry with him, but her parents were not agree for the same. They decided to get married outside of the village and to live together. On 27-04-2019, she herself left her house without informing any one, called Birendra near the dam of Chhote salhe and thereafter they went to Durg by Bus and from where they went to Pune by train. At Pune, they got married at Vitthal Mandir and residing at Dewachiurli. They stayed there for about an year and earned their livelihood. After marriage, the appellant made physical relation with her and ultimately she conceived and delivered a male child. After returning to village Salhekala, she came to know that her father has lodged a missing report then she herself came to the police station on 12-12-2020. Similar is the stand taken by the prosecutrix in her 164 CrPC statement in which she has stated that she herself went to Pune alongwith Birendra on her own will and on her own expenses and after marriage with him, used to live with appellant and at the time of her delivery she returned back to village Salhekala. She wants to live with appellant Birendra and she is having small child from appellant Birendra.

The prosecutrix has been examined as PW-2. She reiterates the same version which she stated in her 161 and 164 CrPC statement. She has not raised any allegations that at any point of time she was being allured by the appellant or the appellant has committed forceful sexual intercourse against her will or consent. Rather, she was in love affair with him and after marriage they were residing at Pune as husband and wife for a considerable period of time. She has not made any complaint to anyone of her nearby place or surroundings while residing at Pune.

Close scrutiny of the evidence makes it clear that the prosecutrix herself went to Pune alongwith the appellant on her own free will. This shows that the prosecutrix was not abducted by the appellant. She was not taken by appellant by force. She herself accompanied the appellant on her own will. It is not a case that the appellant has committed sexual intercourse without her will or consent. She was the consenting party in the act of sexual intercourse with the appellant.

Considering the evidence available on record, the evidence with regard to age and the conduct of the prosecutrix, we are of the opinion that the prosecutrix was more than 18 years of age at the time of incident and further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, the offence under Sections 363, 366, 376(2)(j)(n), 376(3) IPC and Section 5(l)/6 of the POCSO Act would not be made out against the appellant.

For the forgoing reasons, the appeal is allowed. The judgment of conviction and sentence dated 16.08.2023 under Sections 363, 366, 376(2)(j)(n), 376(3) of IPC and Section 5(l)/6 of the POCSO Act are set aside. The appellant is acquitted from the charges framed against him. The appellant is in jail since 16.08.2023. He be released forthwith, if not required in any other case. If fine amount is deposited, the same shall be refunded to the appellant.

Keeping in view the provisions of Section 437-A CrPC, the appellant-Birendra is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties 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.

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.