Pradeep Patre vs State Of Chhattisgarh

Ravindra Kumar Agrawal, J

This appeal arise out of judgment of conviction and sentence dated 01.03.2023 passed by the Additional Sessions Judge/First FTSC (POCSO) Bilaspur, in Special Sessions Trial No.28/2022, whereby the appellant has been convicted for the offence under Sections 363, 366-A, 376(3) IPC and Sections 5(l)/6 of the Prevention of Children From Sexual Offences Act, 2012 (in short, the POCSO Act) and sentenced to undergo RI for 5 years and fine of Rs.250/-, RI for 5 years and fine of Rs.250/- and RI for 20 years and fine of Rs.500/- with default stipulation. Since maximum sentence was awarded under Section 5(l)/6 of the POCSO Act, no separate sentence has been awarded under Section 376(3) IPC.

Brief facts of the case is that, on 23.01.2022 a missing report, Ex.P/10, was lodged by the father of the prosecutrix stating that on 21.01.2022 when he returned back to his house after earning livelihood, his wife informed him that their daughter is not present in the house. His daughter is aged about 15 years and she is missing from 21.01.2022 at about 11:30 a.m. and some one has enticed and taken her away. The police has registered an offence under Section 363 IPC against the unknown person. During investigation, the prosecutrix was recovered on 25.01.2022. She was sent for medical examination to District Hospital, Bilaspur vide Ex. P/20-A where Dr. Rama Ghosh, PW-12, has examined her and gave her report vide Ex.P/20 in which the prosecutrix was found to be habitual for sexual contact. However, no injuries either external or internal was noticed by the Doctor. Two slides of vaginal swab was also prepared. School admission and discharge register was seized from Sindhu Vidya Mandir, Jarhabhata, Bilaspur vide Ex.P/23 in which the date of birth of the prosecutrix is mentioned as 15.01.2007. The Progress Report of Class-Vth of the prosecutrix was also seized by the police. The slides prepared from the vaginal swabs of the prosecutrix were sent for FSL and after its examination the FSL report, Ex.P/23 is submitted, according to which, the semen and spermatozoa were found in the slide and clothes of the prosecutrix as well as the appellant. The appellant was arrested on 26.01.2022. He was also sent for medical examination to District Hospital, Bilaspur, where Dr. B.D. Singh, PW-10, has examined him and gave his report, Ex. P/27 and opined that the appellant is capable to perform sexual intercourse.

The statement of the prosecutrix as well as other witnesses were recorded under section 161 of CrPC. The statement under section 164 CrPC of the prosecutrix was also recorded. After completion of the investigation, the charge sheet was filed before the Additional Sessions Judge/First Fast Track Special Court (POCSO Act), Bilaspur, for the offences under Sections 363, 366, 376 IPC and Sections 4 and 6 of the POCSO Act. The trial Court has framed charges under Sections 363, 366-A, 376(3) IPC and Sections 5(l)/6 of the POCSO Act. The appellant abjured his guilt, plead innocence and claimed trial.

In order to establish the charge against the appellant, the prosecution examined 12 witnesses, whereas, one defence witness has also been examined by the appellant. The statement of the appellant was also recorded under section 313 of CrPC in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case because he is the neighbor of the prosecutrix and there was frequent dispute arose between them.

After appreciation of the evidence adduced by the prosecution, the learned trial court has convicted the appellant and sentenced him as mentioned in para 1 of this judgment. Hence this appeal.

Learned counsel for the appellant has argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of the author of the school admission and discharge register, the same can not be taken into consideration for determination of the age of the prosecutrix. No any Kotwari register or ossification report was produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the prosecutrix and the appellant were having love affair and she herself accompanied with the appellant and both of them were resided together for about four days in the house of the appellant. Thus, the prosecutrix was a consenting party and no complaint has been made by her to any one regarding forceful sexual intercourse or any false promise of marriage. Hence, the offence under IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal. He further argued that at present the appellant and the prosecutrix have got married and the prosecutrix is residing in the house of the appellant.

On the other hand, the learned counsel for the State opposes and contended that the prosecutrix was minor and below 18 years of age at the time of incident which is proved by the school admission and discharge register, Ex.P/24-C which contains the date of birth of the prosecutrix to be 15.01.2007. School admission and discharge register is an admissible piece of evidence to determine the age of the prosecutrix. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The prosecutrix was abducted and kept away from the lawful guardianship by the appellant and he has committed sexual intercourse with her and therefore, the impugned judgment of conviction and sentence needs no interference.

The counsel for the complainant supported the arguments advanced by the counsel for the State and prays for rejection of appeal.

We have heard the learned counsel for the parties and perused the records and evidence adduced.

In order to consider the age of the prosecutrix, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon school admission and discharge register, Ex.P/24-C, as well as the Progress Report of Class-Vth of the prosecutrix, marked as Article-A. PW-6, Smt. Jaya Pratthani, is the Headmistress of Sindhu Vidya Mandir English Medium School, Bilaspur. She has stated in her deposition that the police has seized the school admission and discharge register from her. The said admission and discharge register is normally prepared by the Teachers of the School. In the said register, the date of birth of the prosecutrix is mentioned as 15.01.2007. In her cross examination she states that she could not remember that on the date of admission in the school whether the parents of the prosecutrix had given any documents with respect to date of birth of the prosecutrix or not. The Progress Report of Class-Vth issued by the said Sindhu Vidya Mandir is also on the basis of the school admission and discharge register, Ex.P/24-C.

PW-1, the mother of the prosecutrix, have stated in her deposition that she is an illiterate lady and therefore she does not know the date of birth of the prosecutrix. She has further stated that she has not disclosed the fact as to whether they got registered the date of birth of the prosecutrix in the Kotwari register or not.

12.PW-2, the prosecutrix, have stated that her date of birth is 15.01.2007. In cross examination, she states that she does not know her correct date of birth.

13.PW-3, the father of the prosecutrix, have stated that the date of birth of the prosecutrix is 15.01.2007. In cross examination, he admits that at the time of admission in the school he has not produced any birth certificate of the prosecutrix. He further states that he doesn’t know as to whether any application was taken from him by the school at the time of admission or not.

When the prosecutrix herself has not stated about her correct date of birth; her mother too does not know the date of birth of prosecutrix; her father has also stated that he has not produced any birth certificate in the school at the time of her admission and further he does not remember asto whether any application was taken by the school or not, under such peculiar facts and circumstances merely relying upon the school admission and discharge register, that too issued from a private school, the determination of the age of the prosecutrix to be minor on the date of incident would not be safe for the appellant. There is no clinching evidence available on record to hold that the prosecutrix was minor on the date of incident. The prosecutrix herself in her chief examination have stated that her date of birth is 15.12.2006 whereas, in paragraph 5 she has stated that her date of birth is 15.01.2007. In cross examination she admits that she does not know her correct date of birth. There is no other evidence available on record like birth certificate, Kotwari register or ossification report. Thus, on the basis of the above stated evidence with respect to the age of the prosecutrix, this court is of the opinion that the trial court has committed an error in holding that the prosecutrix was minor on the date of incident.

In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under :

“26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially 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."

In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.

In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under :

“40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. ……..

We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-

"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

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

33.2.2. 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.

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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 Rule 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 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 concerned criminal court. 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 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 Indian 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 Indian 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 case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under :

“14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

“20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.”

Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

“Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.”

Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the trial Court has held her minor. Hence, we set aside the findings given by the trial Court that on the date of incident the prosecutrix was minor.

Now so far as the issue of forceful sexual intercourse by the appellant with the prosecutrix is concerned, we have carefully perused the deposition of the prosecution witnesses. In her 164 CrPC statement the prosecutrix have stated that she know the appellant for last 2-3 months and she used to talk with him regularly. On being called by the appellant, she went to meet him and thereafter the appellant has taken her to his house at Imlibhata, Sarkanda and where they stayed for two days. In between, the appellant has committed forceful sexual intercourse with her. When the appellant came to know that a report has been lodged by her parents, the appellant left her.

In her deposition, the prosecutrix, PW-2, have stated in chief that she know the appellant for 2-3 months. The appellant was her neighbor. She had gone along with the appellant for roaming here and there. She alone came back in the night after three days. When leading questions were asked, she states that she know the appellant since last one year and was in close contact with him over mobile. She admits that she was in love affair with the appellant and used to talk with him regularly over mobile phone. She further admits that before this incident, the appellant has made physical relation with her on many occasions in his house. She admits that she accompanied the appellant on being asked and stayed with him up to 25.01.2022 in the house of the appellant and made physical relation with him.

In cross examination, the prosecutrix have stated that the appellant has not made any physical relation with her. When the trial Court asked a specific question as to whether the appellant has made physical relation with her or not as two contradictory statements were made earlier, she deposed that appellant has not made any physical relation with her.

PW-1, the mother of the prosecutrix, have stated that when the prosecutrix returned back to her house, she has not disclosed anything to her. On query being made, she states that when the prosecutrix came back to her house, she disclosed the incident whereas, in her cross examination she states that she has not disclosed anything about the incident.

PW-3, the father of the prosecutrix, have stated that when the prosecutrix returned back to his house, she has not disclosed anything about the incident. She only disclosed the fact she went alongwith the appellant. When this witness was also asked the leading question, he has disclosed that on 25.01.2022 when the prosecutrix returned back, she disclosed the incident to him. Again in his cross examination, this witness has stated that the prosecutrix has not disclosed anything about the incident.

Close scrutiny of the evidence makes it clear that the statement of the witnesses are contradictory to each other. Their examination in chief and cross examination are also contrary. The evidence available on record and the conduct of the prosecutrix would show that the prosecutrix was not abducted by the appellant. She was not taken by the appellant by force. The prosecutrix appears to be a consenting party and she herself went along with the appellant to his house on her own will. Further, it is not a case that the appellant has committed forceful sexual intercourse without her will or consent. She was the consenting party in the act of sexual intercourse with the appellant.

The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

DW-1, the brother of the prosecutrix, has stated that his sister i.e. the prosecutrix is residing with the appellant for last 2-3 months after getting their marriage. In cross examination, this defence witness admits that the appellant and the prosecutrix were in love affair. The prosecutrix went alongwith the appellant on her own will and consent.

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

For the forgoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 01.03.2023 is set aside. The appellant is acquitted from all the charges framed against him. He is reported to be in jail since 01.03.2023. He be released forthwith, if not required in any other case.

Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.