Krishna Sahu @ Sonu vs State of Chhattisgarh

Naresh Kumar 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 27-3-2023, passed by learned Upper Sessions Judge, 2nd Fast Track Special Court, Bilaspur (henceforth referred to as “trial Court”) in Special Criminal Case (POCSO Act) No. 40/2022, whereby the appellant-accused has been convicted for offence under Section 363, 366, 376(3) of the Indian Penal Code, (in short, hereinafter referred to as ‘the IPC’) and Section 3/4 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.

Default stipulation

Default stipulation

1.

363,  IPC

7 years RI

Rs. 1000/-

4 month addl. RI

2.

366, IPC

10 years RI

Rs. 1000/-

6 month addl. RI

3.

3/4,    POCSO

Act

20 years RI

Rs. 3000/-

1 year RI

Appellant  has  also  been  convicted  for  the  offence  under Section  376(3)  of  the  IPC,  but  since  punishment  under  Section 3/4 of the POCSO Act, is greater in degree, therefore, in view of provisions  of  Section  42  of  the  POCSO  Act,  the  appellant  has been convicted only for offence under Section 3/4 of the POCSO Act.

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

Facts of the case in brief are that on 6-2-2022 at about 6.00 PM, minor victim/prosecutrix along with her friends had gone to purchase vegetables from Mahmand Veg Market, Torva, Bilaspur, but till 9.00 pm, she did not return and despite being searched, she could not be traced, hence on the basis of information given by mother of victim, missing report was lodged and subsequently, on the same day, i.e. 6-2-2022 at about 2.35 hours, FIR under Section 363 of the IPC was lodged against unknown persons. During investigation, on 7-2-2022, victim was produced by her mother in PS Torva, thereafter recovery Panchnama Ex. P-1 was prepared. Site map was prepared. Statement under Section 161 of the victim was recorded, her statement under Section 164 of the Cr.P.C. was also recorded by the Court. Thereafter, offence under Section 366, 376 of IPC and Section 4 of the POCSO Act were added. Victim was medically examined by Dr. Sheela Saha (P.W.7), who vide medical report Ex. P-12 reported that no internal and external injury mark seen anywhere in her body and she opined that no sign is found regarding sexual assault, hence she opined that no definite opinion can be given about rape. She suggested ossification test to ascertain age of victim. Statement of other witnesses were recorded, vaginal slides of victim prepared by Dr. Sheela Saha was seized. Appellant was arrested and then examined by Dr. B.D. Singh. Underwear of victim and appellant were seized, seized underwear of victim and appellant along with vaginal slides were sent for chemical examination and FSL report was received vide Ex. P-20. After usual investigation, charge sheet was filed before learned Fast Track Special Court.

Learned trial Court framed charges under Section 363, 366, 376(3) of IPC and Section 3/4 of the POCSO Act, read over and explained to the accused, who abjured his guilt.

In order to bring home the offence, the prosecution examined following witnesses :-

1

P.W. 1 victim

2

P.W. 2 Victim’s father

3.

P.W. 3 elder father of victim

4

P.W. 4  Mother of victim

5.

P.W. 5  Sister of victim

6.

P.W. 6 Ashok Chandrakar, police constable

7.

P.W. 7 Dr. Sheela Saha, examined the victim

8.

P.W. 8 Vimla Manhar, Female Head Constable

9.

P.W. 9  Bharat Lal Rathore, Asstt. Sub Inspector

10

P.W. 10 Dr. B.D. Singh, medically examined accused.

11.

P.W. 11 Yashpal Tandaon, Constable

12

P.W. 12 Silmani Toppo, Sub Inspector

13.

P.W. 13 Hraday Shankar Patel, Sub Inspector/IO

Besides aforesaid ocular evidence, prosecution also exhibited following documents :-

Sr.

Particulars

1

ExP-01

Recovery memo

2

ExP-02

Statement of victim U/s 164 of Cr.P.C.

3

ExP-03

Crime detail form

4

ExP- 4

Consent letter of father of prosecutrix for medical examination of victim

5

ExP-05

Statement of father of prosecutrix

7

ExP-06

Police statement of elder brother of victim

8

Ex. P-7

FIR

9

Ex. P-8

Consent of mother of victim for medical examination

Ex. P-9

Receipt of Superdnama

10

Ex. P-10

Statement of cousin of victim

11

Ex. P-11

Seizure memo of underwear  of accused

12

Ex. P-12-A

Memo for medical examination of victim and preserving  underwear of victim

13

Ex. P-12

MLC of victim

14

Ex. P-13

Seizure memo of two slides and underwear of victim

15

Ex. P-14-A

Memo of medical examination of accused

16

Ex. P-14

Medical report of accused

17

Ex. P-15

Letter for recording statement u/S. 161, Cr.P.C. to Mahila Thana Incharge

18

Ex. P-16

Letter to JMFC, Bilaspur for recording 164, Cr.P.C. statement

19

Ex. P-17

Arrest memo

20

Ex. P-18

Letter to Tahsildar  for preparing site map.

21

Ex. P-19

Document of FSL

22

Ex. P-20

FSL report

23

Ex. P-21-C

Progress report of victim class 4th

Date of birth mentioned as 06-04-2008

Statement of accused was recorded under Section 313 of the Cr.P.C. 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 the impugned judgment, convicted and sentenced the accused as mentioned in opening paragraph of this judgment against which, this criminal appeal has been filed.

Learned counsel for the appellant would submit that as per case of the prosecution, victim was minor on the date of incident, but this fact has not been proved by adducing any lawful evidence. It is submitted that the victim was a major girl and there are various serious contractions in statement of victim with regard to rape i.e. in the statement recorded under Section 164 of the Cr.P.C. and Court statement, and even as per the statement of her relatives, she had not stated about commission of rape with her in earlier point of time, subsequently, they have stated afterthought. Even statements of witnesses that who brought and when brought the victim in police station, are also contradictory, hence, their depositions are not reliable. Further as per recovery memo Ex. P-1, on next day i.e. 7-2-2022 mother of victim herself produced her in police station Torva and she was recovered from possession of her mother, therefore, only on the basis of positive FSL report, appellant cannot be held convicted. But, learned trial Court has not considered these aspects which itself shows that the case of the prosecution is totally concocted, hence learned trial Court ought to have acquitted the accused. Therefore, it is prayed that the appeal may be allowed by setting aside the impugned judgment passed by learned trial Court. He placed reliance in the case of Uday Vs. State of Karnataka [(2003) 4 SCC 46] and Deepak Gulhati Vs. State [(2013) 7 SCC 675].

Per contra, learned Deputy Government Advocate 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.

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

As per case of the prosecution, on the date of incident, victim was said to be minor. To substantiate this fact, prosecution has filed progress report of Class 4th (Ex. P-21-C) of the victim of Government Primary School, Lalkhadan, in which date of birth of victim has been mentioned as 6-4-2008. Thus, as per this document, on the date of incident, age of the prosecutrix was 13 years and 10 months, but this document Ex. P-21-C has not been seized by prosecution, rather as per deposition of Investigating Officer Sub Inspector Hriday Shankar Patel (P.W. 13), father of the victim had produced alleged progress report of victim, but he has not stated that in such a situation why seizure memo has not been prepared in this regard. He has further deposed that after receiving original progress report, he attested copy of the same and while recording his statement in the Court on 17-3-2003, he had brought original progress report. But as has been stated earlier, that neither alleged progress report Ex. P-21-C has been seized nor father of victim has supported the statement of IO Hriday Shankar Patel (P.W. 13) that he had given him progress report of victim. More over, neither this progress report Ex. P-21-C has been proved from school record nor the Head Master, who has issued alleged progress report, has been examined. Even Dakhil Kharij register pertaining to the victim has also not been seized from alleged Government Primary School, Lalkhadan. Hence, it cannot be relied upon and also date of birth mentioned in aforesaid document cannot be held to be proved.

To prove the fact that on the date of incident, victim was minor, the victim (P.W. 1), her father (P.W. 2), elder father of victim (P.W. 3), mother of victim (P.W. 4) and her elder sister (cousin) (P.W. 5) have been examined and they have stated in their deposition that on the date of incident, age of victim was 14 years but none of them have stated that what is the date of birth of victim. P.W. 2 is father of victim, but he has stated that he had neither got entered date of birth of victim in the record of village Kotwar nor he had got prepared her birth certificate. He and his wife (P.W. 4) i.e. mother of victim are illiterate, hence only on the basis of their verbal statement, it cannot be held that on the date of incident, the victim was minor or her age was 14 years.

P.W. 5 is elder sister of victim, who had got admitted the victim in school, as has been stated by her in para 8 of her deposition and it also gets support from father of victim (P.W. 2). She has stated in her cross-examination, that she had not given any birth certificate while admitting her in school. Hence, on this count also, progress report Ex. P-21-C or deposition of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 is not found to be proved and on the basis of such vague and baseless evidence, it cannot be held to be proved that on the date of incident, age of victim was 14 years or she was minor.

Dr. sheela Saha (P.W. 7) has medically examined the victim and as per her deposition and medical report (Ex. P-12) prepared by her, she had suggested for X-ray of victim for determination of her age, but such ossification test has not been proved to be done.

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 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 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 to the facts of instant case, on due consideration of the prosecution evidence, we find that no any concrete evidence has been brought by the prosecution to prove the fact that victim was minor on the date of incident, despite that, learned trial Court in the impugned judgment has held her minor without any lawful evidence, hence, we set aside the finding given by learned trial Court that on the date of incident, the victim was child/minor, as the same has not been proved by the prosecution.

So far as allegation of kidnapping and rape of victim is concerned, as per deposition of victim (P.W. 1), she was well known to the accused prior to the incident, as she used to go to roaming with the accused. She has further deposed in her Court statement that on the date of incident, when she had gone to Mahmand market, there accused met her and asked to visit Golbajar, then she had gone with him to visit Golbajar, thereafter she came to know that her family members have lodged report, hence they hid in Hanuman temple and stayed there for 2 – 3 hours, then they went to the house of accused along with brother of accused, who took them to PS Torva. Victim in her examination-in-chief has not stated earlier that accused had made physical relation with her, but after declaring her hostile, in suggestive question put by learned Public Prosecutor, she has admitted that at Hanuman Mandir at about 2.30 in night, the accused had made physical relation with her. But in her statement recorded under Section 164 of the Cr.P.C., she has not stated that appellant had made physical relation with her, rather she has stated in her statement under Section 164 that appellant / accused has never made such relation and has never done any wrong act with her.

P.W. 4 mother of the victim, P.W. 2 father of victim, P.W. 3 elder father of the victim, P.W. 5 elder sister of the victim have stated in their deposition that after recovery of victim, she had stated them about the incident, which they have stated to the police also. But earlier, those witnesses except mother (P.W. 4) have also not stated in their deposition that victim had told them about act of rape when they met to the victim after her recovery.

As per recovery memo of victim (Ex. P-1), victim was recovered by police on 7-2-2022 at about 9.00 o’clock when her mother had brought her in PS Torva. This fact has been proved by Hriday Shankar Patel (P.W. 13), who prepared the recovery memo Ex. P-1. He has further stated in cross-examination para 19 that victim had come along with her mother, but victim herself has stated in her deposition that brother of accused had taken them at PS Torva, thereafter recovery memo Ex. P-1 was prepared, whereas father of victim P.W. 2 has stated in his deposition that accused had brought the victim at police station. Elder father of victim (P.W. 3) has stated in his deposition that in the night when they were at PS, then at 2.00 hours in the night, police had brought victim and accused at Police station, but mother of victim (P.W. 4) has stated that in the night when they had gone to lodge report, in that night, the accused, his mother and his younger brother had brought the victim at police station. Thus, when victim was recovered, who brought her at police station and from whose possession, she was recovered, is highly contradictory from deposition of aforesaid witnesses, as well as from Ex. P-1 recovery memo.

Victim (P.W. 1) has admitted the suggestion of Public Prosecutor that accused had made physical relation with her in night at about 2.30 in night, but as has been stated earlier that, in her statement recorded under Section 164 of the Cr.P.C. before JMFC on 8-2-2022, she had stated that accused had never made physical relation with her. As per deposition of her elder father (P.W. 3), accused had brought her at 2.00 o’clock in night at police station (Torva). Victim was examined by Dr. Sheela Saha (P.W. 7) on the same day of her recovery i.e. 7-2-2022, but she has admitted that no external or internal injury was found on the body or private part of victim, hence definite opinion cannot be given with regard to rape. Although FSL report Ex. P-20 is positive and as per that report, semen stains and human spermatozoa have been reported to be found on vaginal slide (article A), underwear (article B) of prosecutrix and underwear of accused, but since there is serious contradiction in respect of physical relation made by accused with victim in her various statements and MLC report also does not support the deposition of victim in respect of commission of rape with her, hence only on the basis of FSL report, commission of rape of victim by accused cannot be held proved beyond reasonable doubt, particularly in respect of facts and circumstances of the instant case as has been discussed herein above.

Thus in view of above discussion, we find that neither prosecution has proved the fact that on the date of incident, the victim was minor, nor the act of kidnapping and commission of rape by accused with the victim has been proved beyond reasonable doubt.

In view of above discussion, we are of the opinion that the trial Court has erred in holding the appellant guilty for the offence punishable under Section 363, 366, 376(3) of the IPC and Section 3/4 of the POCSO Act.

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.