Gopal Sagarwanshi vs State Of Chhattisgarh

N.K. Chandravanshi, J

This criminal appeal under Section 374(2) of Cr.P.C. is directed by the appellant against the impugned judgment of conviction and order of sentence dated 29-10-2021, passed by learned Upper Sessions Judge, 3rd Fast Track Special Court (POCSO Act), Durg, Distt. Durg in Special Sessions Case (POCSO Act) No. 86/2020, whereby the appellant-accused has been convicted for offence under Section 376(3), 376(2)(ढ ) of the Indian Penal Code, (in short, hereinafter referred to as ‘the IPC’) and Section 5(ठ)/6 of the Protection of Children from Sexual Offences Act, 2012 (in short, hereinafter referred to as ‘POCSO Act’) and sentenced as under :-

Sr.

Sentence u/S.

sentence

Default stipulation

1.

As per provision of Section 42 of the POCSO Act, appellant is sentenced under Section 5(ठ)/6 of the POCSO Act, as sentence u/S. 5(ठ)/6 of POCSO Act is greater than u/S. 376(2)(ढ ) of IPC

20 years RI

Rs. 1,000/-

2.

376(3), IPC

20 years RI

Rs. 1000/-

Both the substantive jail sentences have been directed to run concurrently.

Case of the prosecution, in brief, is that on 10-4-2020, father (P.W. 2) of the victim made written complaint Ex. P-1, at PS Mohannagar, Distt. Durg, stating inter alia that on same day i.e. on 10-4-2020, when he came to his house, then he saw that appellant was giving mobile to his daughter (victim/prosecutrix) aged about 15 years, which he snatched from his daughter and when he asked her about the same, then she told by weeping that appellant, who is their neighbour, has been making physical relation with her since one year on pretext of marriage. She also told him that due to public shame, she could not tell anybody in this regard. Based on above facts, unnumbered FIR ( Ex. P-9) was registered at PS Mohan Nagar, Distt. Durg and was sent to its jurisdictional police station Bori, where numbered FIR Ex. P-21 was registered. During the course of investigation, victim was medically examined by Dr. K. Thakur (P.W.6), who gave her report vide Ex. P-16 and in her deposition, stated inter alia that on medical examination, she reported that hymen was old ruptured, no injury on private part, fungal infection was found on thigh, she opined that no definite opinion can be given about recent intercourse. For further opinion, she prepared two vaginal slides of prosecutrix, after sealing the same, handed over it to the female constable for chemical examination. She had further suggested for radio-logical test of victim for her age determination. During the course of Investigation, spot map Ex.P-2 was prepared, progress report of Class 7 (Ex. P-4) of the victim was also seized from her vide seizure memo Ex.P-3. Undergarments of victim were seized vide Ex. P-5. Birth certificate Article A-1 was seized from prosecutrix vide seizure memo Ex. P-7. Spot map was got prepared from concerned Patwari, one mobile phone of Micromax company black colour was seized from father of the victim vide Ex. P-11, Dakhil-Kharij register of Primary School, Parsada of victim was seized from Head Master of the school vide Ex. P-12. Accused was medically examined by Dr. M.K. Parkar (P.W. 7). Deposition of witnesses were recorded, vaginal slides, undergarment seized from victim and underwear of the accused were sent for chemical examination and FSL report is Ex. P-35. The appellant was arrested. After completing the investigation, the charge sheet under Section 376(3) of the IPC and Section 5(ठ) and 6 of the POCSO Act was filed before the learned trial Court for trial.

Charges were framed against the accused under Section 376(3), 376(2)(ढ) of the IPC and Section 5(ठ)/6 of the POCSO Act. Charges were read over and explained to the accused who abjured his guilt.

In order to bring home the offence, the prosecution examined 12 witnesses and exhibited 35 documents and one article (A-1) i.e. birth certificate of victim. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and stated that he is innocent and has been falsely implicated. He has not examined any witness in his defence, but he exhibited two documents i.e. Ex. D-1 and D-2.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 29-10-2021, convicted the accused for offence under Section 376(3), 376(2) (ढ) of the IPC and Section 5(ठ)/6 of the POCSO Act and sentenced him as has been stated in preceding paragraph, against which, this criminal appeal has been filed.

We have heard learned counsel appearing for the parties, perused the impugned judgment and original record of the trial Court.

Mr. N. Naha Roy, learned counsel for the appellant/accused would submit that as per case of the prosecution, date of birth of prosecutrix is 25-11-2004 and date of incident is 15-5-2019, thus on the date of incident, she was minor, but to substantiate this fact, prosecution has not adduced any concrete and lawful evidence. It is further submitted that although, victim has stated in her deposition that her age is 16 years, but her father, who is an illiterate person, has stated that he could not tell date of birth of victim. The mother (P.W. 3) of victim also has not stated date of birth of victim. It is further submitted that as per school record/ Dakhil- Kharij register and birth certificate Article A-1 of victim, her date of birth is 25-11-2004, but nothing has been brought on record to prove the fact that on whose behest and on the basis of which document, aforesaid date of birth was mentioned on school record, particularly when parents of victim themselves are not able to state her date of birth, therefore proving of aforesaid fact as per Section 35 of the Evidence Act was necessarily required, which has not been proved in accordance with law. It is also submitted by learned counsel for accused that, although alleged birth certificate Article A-1 has been seized from victim herself vide seizure memo Ex. P-7, but that birth certificate itself shows that it was got prepared on 16-1-2017 i.e. 13- 14 years after alleged birth of victim. Therefore, birth certificate Article A-1 cannot be relied upon and in view of aforesaid facts, date of birth recorded in school record also cannot be held proved, particularly in view of provisions of Section 35 of the Indian Evidence Act. In this regard, learned counsel for the accused placed reliance on C. Doddanarayan Reddy (Dead) by Legal Representatives and ors. Vs. C. Jayarama Reddy (Dead)and Ors. [2020 (4) SCC 659] and Alamelu Vs. State represented by police [(2011) 2 SCC 385].

7.1 It is further submitted by learned counsel for the accused that allegation against the accused is that he sexually exploited victim for about 1 year prior to lodging FIR, but in this regard, there is nothing in support of alleged deposition of victim. If accused would have sexually exploited her for such a long period, then it would have been seen while their coming or going in such suspicious condition by villagers, but no witness has been examined to support this fact. Further, medical report and FSL report also do not support statement of victim. If there would have been such a long relation between them, then the possibility cannot be ruled out that she would have conceived at any point of time, but nothing has been stated by the victim herself in this regard. But, the trial Court without considering aforesaid fact and legal proposition, has convicted the accused, which deserves to be set aside.

Per contra, Mr. Avinash Singh, learned Panel Lawyer appearing for the State supports the impugned judgment and submits that the learned trial court has passed the impugned judgment based on the evidence available on record and no interference in the same is called for, therefore, this criminal appeal may be dismissed.

As per case of prosecution, date of birth of victim is 25-11-2004. Thus, on the date of incident i.e. 15-5-2019, age of victim was 14 years, 5 months and 20 days, therefore, she was minor. To prove this fact, prosecution has examined victim and her parents, and further adduced evidence of school record and alleged birth certificate of victim.

Victim (P.W. 1) has stated in her deposition, which was recorded on 26-2-2021 that her age is 16 years and her date of birth is 25-11-2004. As per statement of father (P.W. 2) of the victim, he is an illiterate person, hence he could not tell date of birth of her daughter (victim). P.W. 3 is mother of victim. She also could not tell date of birth of victim. As per progress report of Class 7th ( Ex. P-4) of victim, which was seized vide seizure memo Ex. P-3 from her, her date of birth is 25-11-2004. As per Dakhil-Kharij register (Ex. P-32-C) of primary school, which was seized vide seizure memo Ex. P-12 from Girwar Singh Verma (P.W. 11), Head Master of Government Primary School, Parsada, which he has proved in his statement, date of birth of victim is 25-11-2004. He has stated that aforesaid date of birth of victim was recorded at the behest of her parents, but parents of victim do not know about date of birth of victim, then how they could record the same. Thus, it appears that aforesaid date of birth of victim was recorded in school record on the basis of assumption. It has also not been proved that who is the author of the date of birth.

Birth certificate (Article A-1) of victim has also been seized from her vide seizure memo Ex. P-7. In that also, date of birth of victim is shown as 25-11-2004, but this document contains information that it was issued by Gram Panchayat, Parsada on 16-1-2017 i.e. after about 13 years of birth of victim, that too, after recording aforesaid date of birth in her school record. Hence, in that view of the matter, this birth certificate is also not reliable and helpful to prove the exact date of birth of victim.

How dakhil-kharij register is treated to be relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another [(2008) 13 SCC 133] wherein it has been held as under:-

“22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.

It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See: Birad Mal Singhvi Vs. Anand Purohit[(1997) 4 SCC 24]”.

In the case of C. Doddanarayan Reddy (Dead) (supra), Hon’ble Supreme Court while considering the fact that how date of birth mentioned in school record can be considered and relied upon reiterating law laid down in the case of Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604], has observed in para 17, 18 and 19 as under :-

“17. In Birad Mal Singhvi [Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] , the date of birth was sought to be proved by the Principal of the school. Though, the Principal could not produce the admission form in original or its copy. It was held therein that the entries contained in the school's register are relevant and admissible but have no evidentiary value for the purpose of proof of date of birth of the candidates. A vital piece of evidence was missing as no evidence was placed before the court to show on whose information the date of birth was recorded in the aforesaid document. It was held as under : (Birad Mal Singhvi case [Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] , SCC p. 618, para 14)

“14. … No doubt, Exts. 8. 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated, neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. 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. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned.”

In Madan Mohan Singh [Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : (2010) 3 SCC (Civ) 655] , this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, 1872 but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. The Court held as under : (SCC pp. 216-17, paras 20-22)

“20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands believed by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/ nursing home, etc. the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [Brij Mohan Singh v. Priya Brat Narain Sinha, AIR 1965 SC 282] , Birad Mal Singhvi v. Anand Purohit [Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604], Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] and Satpal Singh v. State of Haryana [Satpal Singh v. State of Haryana, (2010) 8 SCC 714 : (2010) 3 SCC (Cri) 1081] .)

If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 and 61, etc. of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time, etc. mentioned therein. (Vide Updesh Kumar v. Prithvi Singh [Updesh Kumar v. Prithvi Singh, (2001) 2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063] and State of Punjab v. Mohinder Singh [State of Punjab v. Mohinder Singh, (2005) 3 SCC 702] .)”

In a judgment in Ram Suresh Singh v. Prabhat Singh [Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194] , it has been held that entry in the school register may not be a public document and, thus, must be proved in accordance with law. The Court held as under : (SCC p. 687, para 12)

“12. The condition laid down in Section 35 of the Evidence Act for proving an entry pertaining to the age of a student in a school admission register is to be considered for the purpose of determining the relevance thereof. But in this case, the said condition must be held to have been satisfied. An entry in a school register may not be a public document and, thus, must be proved in accordance with law, as has been held by this Court in Birad Mal Singhvi [Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] but in this case the said entry has been proved.”

In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh and ors. [(2022) 8 SCC 602], while considering the various judgments, 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:

33.1. A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court.

33.2. An application claiming juvenility could be made either before the court or the JJ Board.

33.2.1. When the issue of juvenility arises before a court, it would be under sub-sections (2) and (3) of Section 9 of the JJ Act, 2015 but when a person is brought before a committee or JJ Board, Section 94 of the JJ Act, 2015 applies.

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.

33.2.3. When an application claiming juvenility is made under Section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a court, then the procedure contemplated under Section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the criminal court concerned, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015).

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 Rules 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 the 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 criminal court concerned. 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 the 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 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 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.”

Reverting to the facts of the instant case, it is apparent from record that except Dakhil-Kharij register (Ex. P-32-C) of primary school and Progress report of class 7th of victim, no other document has been proved, and alleged birth certificate Article A-1 has been got prepared / registered after about 13 years of birth of victim, that too, after recording alleged date of birth i.e. 25-11-2004 in school. It has not been proved that on what basis, aforesaid date of birth was recorded in the school.

Being illiterate/less literate, parents of victim could not have told date of birth of victim, and even they have not stated anything about the age of victim, as to what was the age of victim on the date of incident. Since, alleged birth certificate (Article A-1) has been prepared after 13 years of birth of victim i.e. on 16-1-2017, hence deposition of P.W. 11 Girvar Singh Verma, that date of birth of victim was recorded in school on the basis of her birth certificate is not found to be true. Hence in view of aforesaid law laid down by Hon’ble Apex Court and particularly the fact that date of birth mentioned in school record do not get any support even from deposition of parents of victim, hence alleged date of birth of victim mentioned in school record is not found to be exact date of birth of victim, therefore, we find that prosecution has failed to prove that on the date of incident, the victim was minor. In view of above discussion, we set aside the finding recorded by learned trial Court, that on the date of incident, victim was below age of 16 years or 18 years.

So far as offence of rape of victim by the appellant is concerned, in this regard, victim has stated in her deposition that accused told her that he loves her and want to marry her, which she denied, but one day, accused picked her to a dilapidated house situated outside the village and sexually exploited her. She has further stated that accused sexually exploited her for about one year. She also told this fact to her parents and her parents have also supported her statement. Victim was medically examined by Dr. K. Thakur (P.W. 6) and she gave medical report (Ex. P-16). She has stated that in medical examination, she did not find any external injury and also did not find any injury on her private part, although she has stated that her hymen was old ruptured. She has further opined that no definite opinion can be given about recent intercourse, thus, medical report of victim does not support her statement. Ex. P-35 is FSL report of the vaginal slide (Article ‘A’), panty (Article ‘B’) of victim and underwear (Article ‘C’) of accused seized from victim and accused, respectively, but no spermatozoa has been reported found in vaginal slide and panty of the victim. Thus, FSL report also does not support the deposition of victim.

Chovaram (P.W. 4) is elder brother of father of victim. He has stated in his cross-examination that father of victim came to his house and told him that accused has given mobile to victim and also threatened to kill her, therefore, he had gone to police station along with his brother (P.W. 2) to inform about the incident. This witness has not stated anything that father of victim (P.W. 2) or victim herself has told him about the alleged sexual exploitation of victim by the accused. Even in suggestion given by learned Public Prosecutor in this regard, he has clearly denied aforesaid fact.

Ashwani Kumar Sahu (P.W. 9) is also a resident of village of the victim, he has stated that on being told by father of victim that accused used to tease and molest her, he along with father of victim and some other persons had gone to the house of accused and they explained him not to do such thing. Despite that, accused did not improve his behaviour, therefore, report was lodged to the police against the accused. Thus, this witness also does not support statement of victim and her parents, rather they projected some other facts. Even this witness also clearly denied the suggestion taken by learned Public Prosecutor that due to good relation with accused, he is not telling truth.

The allegation of alleged sexual intercourse with the victim by the accused neither got support from medical report or FSL report, nor by independent witness Ashwani Kumar Sahu (P.W. 9) nor her own elder father (brother of father of victim). Even prosecution has also failed to prove the fact that victim was minor on the date of incident.

Thus, in view of aforesaid discussion, and the law laid down by Hon’ble Supreme Court in the cases mentioned above, we find that prosecution has failed to prove the fact, that the victim was minor on the date of incident, and the accused has committed of rape / aggravated penetrative sexual assault with the victim.

Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. The appellant/accused is acquitted of all the charges. He is in jail. He be set at liberty forthwith, if not required in any other case.

The appellant/accused is directed to file personal bond and two sureties in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Cr.P.C.

Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.