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Judgment
227 paragraphs · 7,019 wordsThis criminal appeal filed by the appellant-accused under Section 374(2) of the Code of Criminal Procedure, is directed against the impugned judgment of conviction and order of sentence dated 22.3.2022 passed by learned Special Judge, POCSO Act, 2012, FTC, Kabeerdham (CG) in Special Session Case No.305/2021, whereby the appellant-accused has been convicted under Sections 363, 366, 376(3) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and sentenced in the following manner:
Sl.
No.
Conviction under Section
Sentence
Fine
Default
1.
363 IPC
RI for 05 years
Rs.1000/-
RI for 01 month
2.
366 IPC
RI for 05 years
Rs.1000/-
RI for 01 month
2.
6 of POCSO
Act
RI for 20 years
Rs.2,000/-
RI for 03 months
All the sentences have been directed to run concurrently.
It is pertinent to mention here that the appellant has been convicted under Section 376(3) IPC also but penalty under Section 6 of the POCSO Act is also similar, therefore, in view of Section 42 of the POCSO Act, the appellant has been sentenced only for offence under Section 6 of the POCSO Act.
Case of the prosecution, in brief, is that complainant, who is the grand-father of the victim/prosecutrix, lodged a report in Police Station Kukdur that on 16.3.2012 at about 9.00 pm, he went to the filed to guard the chana (gram), his grand-daughter/victim/prosecutrix was sleeping alone in the house and parents of the victim/prosecutrix were making bricks in the courtyard of the house. On the next day morning, i.e. on 17.3.2012, when the complainant returned from the field, the victim/prosecutrix was not found in the house. They searched whereabouts of her, but could not find her and thereafter lodged FIR u/s. 363 of Indian Penal Code on 19.3.2021 at Police Station Kukdur, against unknown person. During investigation, the victim/ prosecutrix was recovered from the possession of the appellant on 19.11.2023 and Baramdagi/recovery panchnama was prepared vide Ex-P/1. Document in respect of age of the victim was collected and statement of the victim as well as other witnesses were recorded. According to the statement of the victim, the appellant lured her for marriage, took her to his uncle’s house at Village Sheetaldagh and committed forceful sexual intercourse with her at night. She also stated that earlier also the appellant took her to forest area near Kodwa and committed forceful sexual intercourse with her. Based on this, offence under Sections 366 and 376 IPC and Section 4 & 6 of the POCSO Act were added. Spot map (Ex-P/4) was prepared. Statement of the victim under Section 164 CrPC was got recorded vide Ex-P/3. The victim was medically examined by Dr. Sangeeta Bajkar (PW-4), who opined vide MLC report (Ex- P/15) that no external or internal injury were found on the body of the victim and hymen was old ruptured. She prepared two vaginal slides and also recovered panty of the victim, handed over the same for chemical examination Vide (Ex-P/16). Class-V marksheet (Article A) of the victim was seized vide Ex-P/8. Dakhil Kharij Register of Primary School, Mathpur was seized vide Ex-P/12. Underwear of the accused was seized vide Ex-P/21. The appellant was arrested vide Ex-P/24. FSL report (Ex-P/28) was received with regard to seized undergarment and vaginal slides of the victim and the undergarment of the accused. After usual investigation, charge sheet was filed before the learned trial Court.
The learned trial Court framed charges under Sections 363, 366, 376(3) of the IPC and Sections 5/6 of the POCSO Act, read over and explained to the accused, who abjured his guilt.
In order to bring home the offence, the prosecution has examined following witnesses:-
Sl.
No.
Sl. No.
of witness
Name of the witness
1.
PW-1
Prosecutrix
2.
PW-2
Prosecutrix’s grand father
3.
PW-3
Ratan Dhurve, Head Master
4.
PW-4
Dr. Sangeeta Bajkar, examined the victim
5.
PW-5
Tilak Chand Kosla, Patwari
6.
PW-6
Baisakhu Gond,father of the prosecutrix
7.
PW-7
Vishnu Shyam
8.
PW-8
Vimla Bai, mother of the prosecutrix
9.
PW-9
Dev Singh Paraste
10.
PW-10
Vimla Dhurve, Constable
11.
PW-11
Ramkishan Markam, Investigating officer
12.
PW-12
Smt. Rama Koshthi, Inspector.
Besides the aforesaid ocular evidence, prosecution also exhibited following documents:-
Sl.
No.
Exb.
Particulars
1.
Ex-P/1
Baramdagi/Recovery Panchnama of victim
2.
Ex-P/2
Consent Letter given by the victim
3.
Ex-P/3
Statement of the Prosecutrix U/s. 164 CrPC
4.
Ex-P/4
Spot Map
5.
Ex-P/5
Panchnama
6.
EX-P/6
First Information Report
7.
Ex-P/7
Crime Details form
8.
Ex-P/8
Seizure memo – Marksheet of Class V of the victim
9.
Ex-P/9
Consent Letter of grand-father
10.
Ex-P/10
Mention in list of documents but not found in record
11.
Ex-P/11
Memo regarding providing of Dakhil Khariz Register
12.
Ex-P/12
Seizure of Dakhil Kharij Register of Primary School Mathpur.
13.
Ex-P/13
Copy of Dakhil Khariz Register
14.
Ex-P/14
Supurdnama Receipt
15.
Ex-P/15
Medical examination report of the prosecutrix
16.
Ex-P/16
Query Report
17.
Ex-P/17
Seizure of undergarment of the prosecutrix and vaginal slide of the prosecutrix
18.
Ex-P/18
Seizure of undergarment of the accused
19.
Ex-P/19
Memo for medical examination of accused Kishan Dehariya and Medical examination report.
20.
Ex-P/20
Memo for query of seized underwear and query report
21
Ex-P/21
Seizure of underwear of the accused
22.
Ex-P/22
Seizure of motor cycle without number plate, RC Book, Copy of insurance paper of the motor cycle
23.
Ex-P/23
Memo of JMFC reg. Recording statement of prosecutrix U/s 164 CrPC
24.
Ex-P/24
Arrest/Court surrender Memo
25.
Ex-P/25
Arrest information
26.
Ex-P/26
Memo of FSL Report
27.
Ex-P/27
Receipt of Exhibits
28.
Ex-P/28
FSL Report
29.
Ex-P/29
Memo for medical examination of prosecutrix
30.
Article A-1
Progress Report Class-V of the victim
Statement of the accused was recorded under Section 313 of the CrPC, in which, he denied all 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.
The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 22.3.2022, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant as mentioned in the opening paragraph, against which, this appeal has been filed.
Shri Sunil Sahu, learned counsel for the appellant, would submit that the learned trial Court has absolutely unjustified in convicting the appellant in the instant case, as the prosecution has failed to prove the offence. He would further submit that as per the case of the prosecution, victim was minor on the date of incident, but this fact has not been proved by adducing lawful evidence. In this regard, only Dakhil Kharij Register (Ex-P/13), Progress Report (Article A1) of Class V of the victim have been seized, which shows that date of birth of the victim is 27.02.2006, but it has not been proved by any of the witnesses that, on what basis aforesaid date of birth was recorded in the school. It is further submitted that since the prosecution has failed to prove by adducing cogent evidence that, on the date of incident, the victim was minor, hence the finding recorded by the learned trial Court in this regard is not sustainable. He would further submit that the victim/prosecutrix is a tutored witness and there are various omissions and contradiction in the statement of the prosecutrix recorded under Section 164 CrPC and her court statement. He would further submit that the alleged incident has taken place on 16.3.2021, the matter was reported on 19.3.2021 and on the same day the victim was recovered and there is no explanation for delayed lodging of the report. Further, from the statement of the victim, it appears that the missing report was lodged after the victim came back in her house. This fact also creates doubt on truthfulness of recovery panchnama of the victim. Learned counsel for the appellant further submit that medical report as well as FSL report does not support case of the prosecution and the case is rest only on interested witnesses, who cannot be relied upon. Therefore, it is prayed that the appeal may be allowed by setting aside the impugned judgment passed by learned trial Court. In support of his submission, learned counsel for the appellant relied in the case of C. Doddanarayan Reddy (Dead) by Legal Representatives and ors. Vs. C. Jayarama Reddy (Dead) by Legal Representatives and ors. [(2020) 4 SCC 659] and P. Yuvaprakash Vs. State represented by Inspector of Police (2023 SCC Online SC 846)
On the other hand, Shri Avinash Singh, learned Panel Lawyer for the State supports the impugned judgment and submits that the learned trial Court has passed 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.
We have heard learned counsel for the parties, perused the impugned judgment and original record of the trial Court.
The first question for consideration before this Court would be, whether the trial Court is rightly held that on the date of incident, the victim was minor?
When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredients to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years.
As per the case of the prosecution, the victim was minor on the date of incident i.e. on 17.3.2021, because as per the school record, her date of birth is 27.02.2006, accordingly, her age was 15 years 18 days on the date of incident.
Victim (PW-1) has deposed in her statement recorded in the Court that her date of birth is 27.6.2006. However, in cross-examination, she deposed that her date of birth is 27.02.2006 and since she forgot her date of birth, therefore, she earlier deposed her date of birth as 27.6.2006. PW-8 is mother of the victim. As per her statement, her daughter/victim is 15 years old. However, she submits that since she is illiterate, she does not know whether date of birth of her daughter is 27.02.2006 or not. PW-6 is father of the victim. He has also stated that his daughter/victim is aged about 15 years, however he submits that he does not know whether date of birth of his daughter is 27.02.2006 or not, as he is illiterate. PW-2 is the grand-father of the victim, he also stated that he does not know the date of birth of the victim and on the basis of Aadhar Card and marksheet of the victim, he has been told that the age of victim is 15 years at the time of lodging of FIR.
Thus, perusal of deposition of victim, her father, mother and grand-father show that as per their statement at the time of lodging of FIR, age of the victim was 15years. Although her father, mother and grand-father, being illiterate, could not have told her date of birth and her grand-father have stated that he is saying the date of birth of the victim, i.e. 27.02.2006 is based on Aadhar Card and Marksheet and he has also admitted that he had got entered aforesaid date of birth of the victim on the basis of assumption.
Although victim (PW-1), her grand-father (PW-2) and her father (PW-6) have stated in their cross-examination that victim is third child of her parents and her sister and brother are elder to her and her elder brother’s age is said to be 24-25 years. They have also stated that there is an age difference of 2 years among the children and on this count, learned counsel for the appellant submits that on the date of FIR victim was not minor, but such submission of defence counsel is not found to be accepted, as mother of the victim (PW-8) has stated in her cross-examination para 8, which was recorded on 02.3.2022, that age of her son (who is her eldest child) is 18 years, this fact also corroborates their statement that victim was aged about 15 years at the time of the incident.
To prove the date of birth of the victim, prosecution has seized copy of Dakhil-Kharij register (Ex-P/13) of Govt. Primary School, Mathpur vide seizure memo Ex-P/12. This fact has been proved by Ratan Dhurve (PW-3), who is Head Master of aforesaid Govt. School and as per his statement, date of birth of the victim as per the Ex-P/13 is 27.02.2006. Entries with regard to the admission of the victim in aforesaid Dakhil-Kharij register were made on 02.7.2012 when the victim got admitted in Class-I. Vide Ex-P/8, Progress Report (Article A/1) of Class-V of the victim was seized from grand-father of the victim, in which date of birth of the victim is mentioned as 27.02.2006. Thus, it is apparent that in school record of the victim, her date of birth has been mentioned as 27.02.2006.
Ex-P/15 is the medical report dated 20.3.2021 of the victim, which was prepared and proved by Dr. Sangeeta Bajkar (PW-4), in which she has noted the age of victim as 15 years. She has also noted in the report that axillary hair scanty brown blackish in colour and breast not well developed, which indicate that victim was not major at the time of the incident. Learned trial Court, while recording deposition of the victim (PW1) on 09.9.2021, has also noted her apparent age as 15 years. Thus, ocular evidence as well as documentary evidence/school record (copy of Dakhil Kharij Register & Progress Report of Class-V) show that on the date of incident, the victim was minor, as her date of birth is 27.02.2006.
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) by Legal Representatives and ors. Vs. C. Jayarama Reddy (Dead) by Legal Representatives and ors. [(2020) 4 SCC 659] , 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. xxx xxx xxx.
33.2. xxx xxx xxx.
33.2.1.. xxx xxx xxx.
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. xxx xxx 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 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.”
Recently, in the case of P. Yuvaprakash (supra), 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 v. State of Uttar Pradesh [2021(12) SCR 502], 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 v. The State of Uttar Pradesh [(2019) 9 SCR 735] that:
“Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 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 v. State of West Bengal [(2012) 9 SCR 224], 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.”
Reverting into facts of instant case, although it has not been proved in case in hand, by parents of the victim that on the basis of which document, aforesaid date of birth of victim was recorded, but with regard to age of any child, evidence of his/her father and mother is the best evidence and when they say that at the time of incident, age of their child was 15 years and this fact also gets support from school record, where she first attended, that too is a government school, in which date of birth was noted prior to 9-10 years of the incident and further doctor and court also assumed and noted that while medical examination/recording of deposition, age of victim is 15 years, hence, on the basis of aforesaid evidence, strong presumption of fact arise in favour of victim that on the basis of date of birth as 27-2-2006, on the date of incident she was minor i.e. below the age of 16 years. Such strong presumption of fact cannot be discarded only on the basis of the fact that the document on the basis of which, such date of birth has been mentioned in school record, has not been proved, because, as has been stated earlier that aforesaid date of birth mentioned in school record of government school, where victim first attended, that too, prior to 9 – 10 years of date of incident and victim’s age based on that date of birth is also supported by the deposition of her parents. Illiteracy or less literacy also cannot be a ground to disbelieve such strong presumption of fact, because, after all, why parents of victim of such heinous offence would record wrong date of birth of their child, that too, many years prior to the incident. If, from the evidence available on record, age of victim is found to be marginal to the age of majority, then such date of birth of school record may be treated as doubtful, but if age of the victim is found to be below 16 years, then it cannot be discarded and in such situation, burden shifts on accused, that, as to why date of birth recorded in the school, should not be believed.
In the case of P. Yuvaprakash (supra), Hon’ble Apex Court has observed that Clause (i) of Section 94(2) of Juvenile Justice (Care and Protection of Children) Act, 2015 places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the Case of Birad Mal Singhavi (supra), parents or near relatives of Hukumi Chand and Suraj Prakash were not examined, hence, date of birth mentioned in the documents of school records of aforesaid two candidates, were not found to be true. In aforesaid case, Hon’ble Supreme Court has held that parents or near relatives having special knowledge are the best persons to depose about the date of birth of a person.
In the instant case, parents and grand-father of the victim have clearly deposed that on the date of incident/FIR, age of the victim was 15 years, which also get support from school record and other documents. Therefore, in view of the above discussion, we do not find any illegality or infirmity holding minor to the victim/prosecutrix, i.e. below the age of 16 years on the date of lodging FIR, recorded by the trial Court.
Appellant/accused has not brought any strong fact on record or in the cross-examination of material witnesses of the prosecution to disbelieve aforesaid date of birth of the victim. Therefore, we uphold the finding recorded by the trial Court that on the date of incident, victim was child (minor) i.e. below the age of 16 years.
The next question for consideration before us is whether the appellant has abducted the minor victim and committed rape on her?
In this regard, victim (P.W. 1) has clearly stated in her deposition that on the date of incident, appellant had taken her to his uncle’s house at Village Seetaldah on the promise of marriage, they stayed there at night and the accused established physical relation with her. On the next day, they went to Kawardha and stayed there on the day, thereafter in the night, he dropped her on the way to her house and she went to her house. She has further deposed that, since her parents were scolding her, the accused again took her to village Salhebhatti and left her in her friend’s house and thereafter he returned. She has further stated that when she was going to Salhebhatti with the appellant, then between village Dalamouha, Mathpur-Kodvagodan, Police caught her along with the appellant and took them to Police Station Kukdur, where recovery panchnama (Ex-P/1) was prepared. She has also admitted her signature on aforesaid document.
Deposition of Grand-father of the victim (PW-2), father of the victim (PW-6) and mother of the victim (PW-8) show that after recovery of the victim, they came to know that appellant had abducted her, but they have not stated in their examination-in-chief that the victim had told them that appellant had sexually exploited her. Father of victim (PW-6) has admitted suggestive question of learned Additional Public Prosecutor that after four days of the incident, victim had told Kawardha Police in front of him that the appellant had committed wrong with her, but he has not stated that victim had told aforesaid fact to them. Even mother of the victim (PW-8) has deposed in para 3 that despite being asked by her that where she had gone and what happened to her, but she did not tell anything.
As per recovery memo (Ex-P/1) on 19.3.2021 victim was recovered from village Dalamouha from the possession of the appellant. Aforesaid recovery memo has been supported by its author Investigating Officer Ramkishan Markam (PW-11), but it has not been supported by Vishnu Shyam (PW-7) and Dev Singh Paraste (PW-9), who are the witnesses of aforesaid recovery. Dev Singh Paraste (PW-9) has clearly stated that he does not know that from where the victim was recovered. He has denied suggestion of learned Additional Public Prosecutor that the victim and the appellant were caught by the police near chouk of road of village Dalamough-Mathpur-Kamti. Vishnu Shyam (PW-7) is relative of the victim. Although he has stated in his deposition that after four days of the incident, victim was recovered from chouk of road village Dalamough-Mathpur-Kamti, but he has denied the suggestion of learned defence counsel that, at that time the appellant was also present there and he was caught by the police. Although this witness has deposed that the appellant had told the victim to stay there, he is coming and thereafter they will go to police station, but only on this basis recovery panchnama (EX-P/1) cannot be held proved from the deposition of this witness.
Thus, there is highly contradictory fact emerge from the deposition of the witnesses that from where the victim was recovered. Victim (PW-1) herself on one hand say in her deposition that after abducting and keeping her for two days, the appellant himself had dropped her on the way to her house, thereafter she had went to her house, but subsequently, on being scolded by her parents, the appellant again took her to village Salhebhatti and dropped her to her friend’s house and thereater the appellant returned. But on the other hand, she says that when they were on the way, the police had caught them. In her deposition recorded under Section 164 CrPC, she has stated that after keeping about two days, the appellant himself had taken her to her house, dropped her there and even he stayed there for 4-5 minutes, but she has not stated in this statement that on being scolded by her parents the appellant had again taken her and dropped her in the house of her friend situated at village Salhebhatti. Recovery Memo (Ex-P/1) also does not get support from independent witnesses, rather Vishnu Shyam (PW-7), who is one of the witness of Ex-P/1, has destroyed alleged recovery by saying that when victim was recovered from chouk of road village Dalamough-Mathpur-Kamti, at that time, the appellant was not there. As per the case of the prosecution, after abduction, the appellant kept the victim/prosecutrix for about 2 days and in between, he had taken her to various places, but none of such witnesses has been examined by the prosecution to prove the fact that the appellant had kept roaming with her at various places. Thus, considering highly contradictory facts with regard to place of recovery of victim, particularly with regard to alleged recovery made from possession of the appellant or not and also considering the fact that prosecution has not examined any witness to prove the fact that for the alleged period of two days, the appellant had kept the victim with him, factum of kidnapping could not be held proved beyond reasonable doubt against the appellant. Therefore, we find that conviction of the appellant held by the trial Court in this regard is not sustainable.
So far as allegation of sexual exploitation is concerned, as has been observed in the preceding paragraph that after recovery, the victim did not tell her parents that the appellant had sexually exploited her. Further, as per deposition of Dr. Sangita Bajkar (PW-4) during medical examination, she did not find any external or internal injury on the body of the victim, which also get support from MLC report (Ex-P/15) prepared by her. In the FSL report (Ex-P/28), no seman or human sperm were found on the Articles ‘A’-undergarment of the victim, Article ‘B’- vaginal slides of the victim and Article ‘C’ underwear of the appellant. Thus, factum of charge of rape with victim is not supported even by her medical report (ExP/15) and FSL Report (Ex-P/28). Therefore, considering other contradictory facts emerge from deposition of the victim in her various statements, only on the basis of her statement, charge of rape with her by the appellant also cannot be held proved beyond reasonable doubt.
In view of the above discussion, although on the date of incident, victim was minor, below the age of 16 years, but considering the evidence, available on record, as has been discussed in preceding paragraph, we find that conviction and sentence passed by learned trial Court vide impugned judgment is against the evidence available on record, and therefore, bad in law.
Consequently, appeal allowed. The impugned judgment of conviction and order of sentences are 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 with a surety in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the CrPC.
Let a copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and compliance.