Mukesh Kumar Nag @ Mohanlal Nag vs State Of Chhattisgarh

Sanjay Kumar Jaiswal, J

This appeal is directed against the judgment of conviction and order of sentence dated 20.12.2019 passed by the Additional Sessions Judge (FTC), Kondagaon, district Kondagaon in POCSO Case No. 12/2017 whereby the accused/appellant has been held guilty for commission of the offence punishable under Sections 363 of IPC and 06 of the Protection of Children from Sexual Offences Act and sentenced to undergo RI for 7 years and RI for 30 years respectively with default stipulations.

As per case of the prosecution,on 21.04.2017, at about 12.30 p.m., the accused/appellant allured the prosecutrix, who is a minor, aged about 16 years, taken away from the legal guardianship of her parents and has forcefully developed physical relation with her. It is alleged that nephew of the complainant came along with the accused/appellant for participating in the marriage ceremony of his son and took his daughter in his bike. It is further case of prosecution that on search being made, when the prosecutrix was not found, a missing report Ex.P-24 was lodged at Police Station Makdi by father of the prosecutrix against unknown person. Search was made and on 24.04.2017 the police recovered the prosecutrix and recorded her statement and on the basis of which, Crime No. 23./2017 was registered against the appellant for the offence punishable under Sections 363,376 IPC and Section 6 of the POCSO Act, 2012. After the report, prosecutrix was subjected to medical checkup, statement under Section 164 Cr.P.C. was recorded, spot map was prepared and thereafter charge sheet was filed under Sections 363, and 376 of the Indian Penal Code. At the time of framing of charge, prima facie as per the documents placed on record the victim was minor, subsequently charges were framed under Sections 363.376 IPC and 6 of the POCSO Act, 2012. After completion of investigation, charge sheet was filed against the accused/appellant. Learned trial court on the basis of material contained in the charge sheet, framed charges against the appellant. The appellant abjured the guilt and were therefore put to trial.

In order to prove its case, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 Cr.P.C. wherein the appellant has denied and stated he has been falsely implicated in the present case.

Learned counsel for the appellant submits that the prosecution has not come out with clear and clinching evidence with regard to prosecutrix being minor and neither the date of birth has not been proved nor is there any evidence to show that the date of birth was recorded in the school register on the basis of some documentary evidence or declaration given by father or mother of the prosecutrix. He submits that the manner in which the prosecutrix has deposed in her statement would show that it is a case of consent and there was love affair between the appellant and the prosecutrix. He further submits that when she was recovered, false allegation of rape has been leveled against the appellant.

On the other hand, learned counsel for the State supports the impugned judgment and submits that the findings recorded by the trial court is strictly in accordance with law and there is no infirmity in the same. However, it is submitted that irrespective of the age of the prosecutrix, as per the evidence of the prosecutrix, the appellant assured her to drop her in her house and taken to somewhere else, she was confined, threatened and subjected to sexual intercourse, she was moved to another house until she was recovered. It is submitted that after she was recovered, she has stated that the appellant threatened her and subjected to rape. The FSL report Ex.P-26 also confirms the presence of sperm on the clothes and swab of the prosecutrix

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

The witnesses examined by the prosecution including the victim herself as (PW-1), whose father is Budhram Sagar (PW-2) and mother Mrs. Anti Sagar (PW-3). Budhram Sagar (PW-2) had reported the incident to the police, which is Reported as Ex.P-4. Subhauram Sonwani (PW-4) is her maternal grandfather in the relationship. Mukundaram (PW-5) is the brother in relation and Tularam Sagar (PW-6) is the real brother of the victim. It is evident from the statement of all that on 18/04/2017 the marriage of the victim's brother Tularam Sagar (PW-6) was taken place, in which his relative Mukundaram (PW-5) had come. Along with Mukund Ram, the appellant Mukesh Kumar Nag alias Mohan Lal Nag, who is a resident of village Bade Kanera, also come as a friend.

The victim (PW-1) has stated in her court statement that she is 17 years old. When she was going to Amravati market on the second day of her brother's marriage, then she met with appellant on the way and asked her to drop at the market on scooty, thereafter, the victim had gone with the appellant. However, the appellant did not drop her near the market and took her to his house in village Bade Kanera. Where, the appellant forcefully sexually exploited her by showing knife for one day. The appellant also refused to victim by asking her to leave. And, by taking the phone of the appellant, she informed her father that the appellant had forcibly brought with him. Then, the appellant and his mother took the victim on a scooty to the house of the maternal uncle of the appellant at village Bastar. There too, the appellant sexually exploited her by showing knife at night. Then, on requesting by victim, they dropped the victim to her home and then she narrated the whole incident to her parents.

The victim (PW-1) in her cross-examination has stated that she did not object, while the appellant was her to drop on scooty. In the Police statement also, she did not reveal the point of showing the knife. She has denied the fact that she went with the appellant as per pre-arranged plan. She also stated her her date of birth is June 18, 2002.

It is reflected in the statement of the victim's father Budhram Sagar (PW-2), mother Smt. Anti Sagar (PW-3) and maternal grandfather Subhauram Sonwani (PW-4) that at the time of marriage of Tularam Sagar (PW-6), the victim had disappeared from the house. Later on, she himself took the name of the appellant over the phone and informed that the appellant had brought her. Then, the family members of the victim had gone to the house of the appellant, but they did not find the victim and thereafter, the appellant’s party/parents dropped the victim back to her village. The police had prepared the recovery Panchnama Ex.P-6, in which, the victim has been recovered from the possession of appellant.

Mukundaram (PW-5), who appears to be the brother of the victim has stated that the appellant/accused had come with him to the marriage ceremony of Tularam Sagar (PW-6). They went to sleep after having dinner. After waking up, he saw that the accused was not on the bed. Then, he came to know that the appellant and the victim had gone somewhere. It is clear from this that the victim had gone with the appellant. No facts have come out that whether there was any permission or consent of the relatives of the victim to take the victim with the appellant.

Dr. Mamta Thakur (PW-8) stating in the report Ex.P-14, after medical examination of the victim dated-24/04/2017 i.e. about three days after the incident that there were no injury found on the external or internal part of the victim's body. Her hymen was torn at the 06 o'clock position. She prepared two vaginal swabs and two vaginal smears of genital fluid and gave them for testing. The query was sought by the police by bringing the victim's underwear as well. Then, she had given report Ex.P-15 by advising to send it for chemical test. Dr. Mamta Thakur (PW-8) has opined in report Ex.P-14 that sexual intercourse with the victim seemed to have taken place.

Dr. Anil Dewangan (PW-10) after conducting medical examination of the appellant and giving report Ex.P-16, stating therein that he is fully capable of sexual intercourse, has not been disproved.

B.R. Mandavi (PW-15) as an investigator, while being the Deputy Superintendent of Police has told to send the underwear of both the parties and the sleeve of the vaginal swab of the victim to the laboratory for chemical testing through the draft of the Superintendent of Police, whose memorandum is Ex.P-24. The exhibits are Ex.P-25 as acknowledgment receipt and Ex.P-26 as test report of Regional Forensic Science Laboratory, Jagdalpur. The above test report Ex.P-26 of the laboratory is admissible in evidence under Section 293 of the Code of Criminal Procedure. According to the said laboratory report, semen stains and human sperm were not found in the underwear of the appellant. However, human sperm have been found in slides and vaginal swabs from the victim's underwear and vaginal discharge. It shows that sexual intercourse took place with the victim.

In the case, the defense of the victim being a consenting party has been taken by the appellant side during the trial. In this regard, considering that the victim has accepted in Para-7 of the cross-examination that she did not know the appellant before the incident. She has also admitted that while sitting in the vehicle with the appellant, she did not raise any objection. There is also not mentioned in her statement of police that the appellant was showing the knife to her. It also appears that the appellant took her from one village to another in a two wheeler and the victim was sitting with him in the appellant's two wheeler without any coercion. Till the time of moving from one village to another, no such fact has come to light that the victim had ever sought any help in a public place. At the time of medical examination of the victim, no external or internal injury has been found.

Under Section 363, 376 Indian Penal Code and Section-6 of the Protection of Children from Sexual Offenses Act, it is important to see whether the victim was below 18 years of age at the time of the incident? If, she is found to be less than 18 years of age, her consent shall be of no effect. But, if the fact of her being below 18 years of age is not proved, then the conviction of the appellant will not be justified on the basis that the victim is seen as a consenting party in the case. Thus, the important thing to be concluded is whether, at the time of the incident, the victim was below 18 years of age?

The burden of proof of the said fact lies on the prosecution. In this context, the victim herself has stated her age as 17 years in her court statement dated 07/06/2018. The victim's father Budhram Sagar (PW-2) and mother Smt. Anti Sagar (PW-3) have been unable to tell the date of birth of the victim in their court statement. No Kotwari register or primary school certificate is presented regarding the date of birth of the victim.

On behalf of the prosecution, the admission/dismissal register of the victim's admission in class-6 in the upper primary school, Bade Ghodsoda, district-Kondagaon, dated-18/06/2012, has been presented in the form of Ex.P-12C. Principal of the school, Rainuram Netam (PW-7) has submitted the original admission/dismissal register of the school as Ex.P-12 and certified its photocopy as Ex.P-12C. According to this register, the date of birth of the victim is recorded as 18/06/2001. In the court statement, the victim herself has stated her year of birth as 2002 instead of 2001. The date of birth is known to the parents and not to the child himself. The child's information is based on the information provided by the parent. The parents themselves do not remember the date of birth of the victim. The head master-Rainuram Netam (PW-7) has not made the entry in the admission/dismissal register himself, there is no signature of him either. He has said that he is not aware on what basis the date of birth has been recorded at the time of admission and stated that the date of birth of victim is registered on the basis of transfer certificate. No transfer certificate of the victim is produced. There is also no school register available at the time of admission of the victim in class-I. In this way, it is not clear on what basis the date of birth of the victim has been recorded as 18/06/2001 in Class-6 admission/dismissal register as Ex.P-12C.

In this context, it has been argued by the appellant side that the prosecution has been unable to establish the definite date of birth of the victim and the evidence regarding the date of birth is ambiguous, therefore, the appellant is entitled for benefit of doubt. In support of his argument, he has cited the judgment dated-29/09/2010 passed jointly by this High Court in Criminal Appeal Nos. 632/1993 and 835/1993 published in 2010 (4) CGLJ 355. In the said case also, the certificate was given on the basis of the admission register in the school. But, on what basis the date of birth was written in it, it could not be clarified. Then, the evidence regarding the date of birth was found to be unconvincing and the conviction was set aside.

In the present case also, the victim appears to be a consenting party. No clear evidence has been presented by the prosecution regarding her date of birth. The school admission/dismissal register of Ex.P-12C is at the time of admission in class-6 and it has been stated that the recording the date of birth of the victim is on the basis of transfer certificate, but the statement of the person registering the date of birth has not been made. Evidence is not presented as to whether the date of birth was registered at the time of admission in class-I. The Principal of the school, Rainuram Netam (PW-7) himself has not made the said entry. The victim herself stated that her date of birth is one year later than the above entry. Regarding the date of birth of the victim, her father Budhram Sagar (PW-2) and Mrs. Anti Sagar (PW-3) have been unable to give information. In this way, there is no clear and reliable evidence that the victim was a minor below 18 years of age on the date of the incident-21/04/2017. In such a case, it appears that the victim seems to be a consenting party, the conviction of the appellant under Sections 363, 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offenses Act is not found to be sustainable.

Therefore, in view of above observations, the appeal is allowed. The conviction and sentence of the appellant Mukesh Kumar Nag @ Mohan Lal Nag under Sections 363, 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offenses Act is set aside. The appellant is acquitted of the above offenses by giving benefit of doubt. Any other case of the appellant-Mukesh Kumar Nag @ Mohan Lal Nag, if he is not needed he should be released immediately.

Accordingly, the present criminal appeal is allowed.