Prayagraj Nayak @ Prince vs State Of Odisha And Others

The present Criminal Appeal has been preferred against the order dated 1.3.2019 passed by the learned Additional District and Sessions

Judgeâ€"Cumâ€"Special Judge, Phulbani in rejecting the appellant’s prayer for bail in C.T. Case No. 05/2019 arising out of G.Udayagiri P.S. Case

No. 08 dt. 14.01.2019 registered under Section 376(2)(n) of IPC read with Section 6 of the POCSO Act, Section 67A of the I.T Act and Sections

3(1)(w)(i)(ii)/Section 3(2)(v) (va) of the SC and ST (PoA) Act.

The prosecution story hinges on the fact that on 14.01.2019, the present informant Santoshini Pradhan, mother of the victim girl named as Suhasini

Pradhan of village Kalinga, PSâ€"G.Udayagiri, Dist. Kandhamal, appeared with a written report before the P.S alleging the fact that

appellant/accused who is also a student of Kalinga Vidyalaya, G. Udayagiri, aged about 19 years, compelled to keep physical relationship with her

minor daughter named as Suhasini Pradhan who is also pursuing her +2 Second year in the same College. It is also alleged that the accused had kept

physical relationship with her and captured the photographs of her intimate moment. It is further alleged that the accused forced her to keep physical

relationship with him and when she denied keeping physical relationship with him, the accused made her photographs viral in WhatsApp and defamed

her in public. When the people of their locality asked about the same to the informant, her minor daughter narrated the incident to her mother

(informant) and told that the present accused is blackmailing her. Thereafter, the informant reported the matter to the P.S. and the I.O registered this

case against the accused person on 14.01.2019. Accordingly, Police arrested the appellant on 14.01.2019 and forwarded to the court and learned

lower court rejected the bail application of the appellant and remanded the appellant to the judicial custody. Challenging the said order, the appellant

preferred bail application before the learned Additional District and Sessions Judgeâ€"cum- Special Judge, Phulbani and the Additional District and

Sessions Judge-cum-Special Judge, rejected the bail application of the appellant by considering the nature and gravity of the offence on 01.03.2019.

Mr. S.P.Mohanty, Ld. Counsel for the Appellant, strenuously submitted that appellant is a student and an innocent boy. He has been falsely

implicated by the mother of the victim culminating into a false FIR on 14.01.2019 attracting the offences under Section 376(2)(n) of IPC read with

Section 6 of the POCSO Act, Section 67A of the I.T Act and Section 3(1)(w)(i)(ii)/ Section 3(2)(v)(va) of the SC and ST (PoA) Act, with regard to

G.Udayagiri P.S Case No. 08 dt. 14.01.2019 corresponding to C.T Case No. 5 of 2019, pending before the learned Additional District and Sessions

Judgeâ€"Cumâ€" Special Judge, Phulbani. He further submitted that the statement of the Victim girl and other witnesses recorded by the Police u/s

161 of Cr.P.C, indicates that the accused and the victim girl were well known to each other very closely and are studying in the same college and also

having love relationship with each other. They came into physical contact was fully consensual. Hence, Section 376(2)n) of IPC will not attract in the

present case. When the mother of the victim girl got information about the said love relationship, she got infuriated and foisted this case against the

present accused, who is a very innocent student. He contended that there is no iota of truth in so far as the viral of the nude photographs and videos of

the victim girl in WhatsApp from the mobile phone of the accused.

He further submitted that the Victim girl was major at the time of the commission of the alleged offence. As per the RTI information dated

19.03.2013 supplied by the office of the Child Development Service Project, G. Udayagiri, her age was 20. So, the provisions of POCSO Act are not

applicable in the present case. He further submitted that the Police have not seized any S.T. caste certificate of the victim. It is relevant to submit that

the issue relating to the caste of the informant and her parents are under sub-judice before the State Level Scrutiny Committee, Berhampur.

Therefore, with regard to the actual caste (S.T) in issue has not yet been decided, as a result of which, the appellant and the victim are of same caste.

So, so the provisions of SC/ST (PoA) Act is also not applicable in this case.

Per contra, Mr. S.S. Mohapatra, Ld. Addl. Standing Counsel, appearing for the Respondent No.1, vehemently opposed the bail application filed by

the appellant herein. He further stated that the age of the victim as per matriculation certificate is 27.12.2001 which is taken to be 17 years at the time

of the offence hence, prima facie, attracting provisions of the Prevention of Children from Sexual Offences Act, 2012 as well as the other offences

adumbrated in the FIR. He contended that the appellant is accused of compelling the minor girl to have physical relationship with him and threatened

her by viralling some of the intimate snaps. This is a heinous offence which deserves harsh punishment. It is also stated that considering the nature

and gravity of the offence and facts of the case, the accused has committed offence of rape on a minor girl. Hence, this Court should not incline to

release him on bail.

Heard the rival submissions of the parties. The central issue revolving around the present Appeal is the issue of divergent dates of birth. In this

context, the Courts are very often confronted with a situation where there are multiple dates or erroneous dates with respect to the date of birth of a

victim. The Hon’ble Supreme Court has taken judicial notice of the fact that the parents of the child tend to give a lower age to the public

authority Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489 . On most occasions, this is done for the purpose of

securing some benefits, either in appearing for some exam or to enter into some public employment. With respect to the question of determining the

age of the victim, the Hon’ble Supreme Court in Jarnail Singh v. State of Haryana (2013) 7 SCC 263 has categorically held that “even though

Rule 12 (of the Juvenile Justice (Care and Protection of Children) Rules, 2007) is strictly applicable only to determine the age of a child in conflict with

law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime.â€​

Further, the Hon’ble Court observed that “there is hardly any difference in so far as the issue of minority is concerned, between a child in

conflict with law, and a child who is a victim of crime.†The Hon’ble Court, in the above judgment, has also examined the comparative value of

each of the documents mentioned in the very same Rule. In particular, the Hon’ble Court held:

 “The manner of determining age conclusively, has been expressed in Sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the

age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options

under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest

rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the

concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the

said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date

of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in

the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet

again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child

concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3)

postulates the determination of age of the concerned child, on the basis of medical opinion.â€​

The Hon’ble Supreme Court in Mahadeo v. State of Maharashtra & Ors (2013) 11 SCC 637. held that “in the light of such a statutory rule

(12 (3)) prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the Courts for

the purpose of ascertaining the age of a victim as well. The Applicability of Rule 12 (3) to a victim was also re-iterated by the Hon’ble Supreme

Court in State of MP v. Anoop Singh (2015) 7 SCC 773. and Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751 .However, presently, Section

34 of the POCSO Act i.e. after POCSO (Amendment) Act, 2019 reads as under:

Procedure in case of commission of offence by child and determination of age by Special Court.â€"(1) Where any offence under this Act is

committed by a child, such child shall be dealt with under the provisions of 1 [the Juvenile Justice (Care and Protection of Children) Act, 2015 It came

into force with effect from 1-1-2016 and the Juvenile Justice (Care and Protection of Children) Act, 2000 was repealed (2 of 2016)].

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the

Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a personas determined by it

under sub-section (2) was not the correct age of that person.

Section 94 of the Act of 2015 requires the Court to make enquiry regarding determination of age of the person accused and manner of holding enquiry

is provided in Section 94(2). Thus, the procedure to be followed in determination of age under the Act of 2015 has been provided under Section 94(2)

which is parimateria to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 .Manoj Vishwkarma vs. State of Chhattisgarh

2017(2)CGLJ587 Accordingly, to determine the age of the accused/victim (in view of the law laid down in Jarnail & Mahadeo) the Court has to look

into Section 94 JJ of the Juvenile Justice (Care and Protection of Children) Act, 2015, which reads as under:

“94. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of

this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation

stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for

further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the

Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining â€

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in

the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test

conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of

such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be

the true age of that person.â€​

The High Court of Madras in Rajendran v. State 2017 (1) MLJ (Crl) 718 took into account the Amended Juvenile Justice Act and applied Section

94 of the same as under:

“…As per Section 34 of POCSO Act, the age of the victim shall be determined by the court. As indicated in sub- section (1) of Section 34 of

POCSO Act, the age of the victim could be determined by following the procedure contemplated in Section 94 of the Juvenile Justice [Care and

Protection of Children] Act, 2015. As per sub-section (2) of Section 94, the date of birth certificate from the school, or the matriculation or equivalent

certificate from the concerned examination Board, if available; shall be the evidence to determine the age of the child. In the absence thereof; the

birth certificate given by a corporation or a municipal authority or a panchayat shall be the evidence for determination of the age of the child. In the

absence of either certificate from the school or certificate from the corporation or municipal authority or panchayat authority, the age shall be

determined by an ossification test or any other latest medical age determination test….â€​

Interestingly, the High Courts have recently started recognizing the age mentioned on Aadhar cards of the victim, especially when the defense do

not challenge the same. Jabbar v. State251 (2018) DLT 71, High Court of Delhi; Sachin Chhetri v. State of West Bengal 2019 (2) CLJ (CAL) 21,4

High Court of CalcuttaThe Courts have also taken a view that in the event there is doubt regarding the age pursuant to the bone ossification test, the

benefit should be given to the accused. Shweta Gulati and Ors. v. The State Govt. of NCT of Delhi 251 (2018) DLT 667 ,High Court of Delhi The

general rule about age determination is that the age as determined can vary plus minus two yearsDarga Ram vs. State of Rajasthan (2015) 2 SCC

775.

With regard to the nature of enquiry, when certificates are placed before a Court, the Hon’ble Supreme Court in Ashwani Kumar Saxena vs.

State of M.P (2012) 9 SCC 750has held as under:

“36. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in

service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth

certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be

correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those

certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or

certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age

determination.â€​

The date of birth relied on by the appellant is erroneous since the date of birth recorded in the Register of Anganwadi is not reliable. Further, the

statement of the victim girl and other witnesses recorded by the Police under Section 161 of Cr. P.C., stated that accused and the victim girl is well

known to each other very closely and were studying in the same college and also having love relationship with each other. Therefore, they had some

intimate relationship which is purely consensual, hence it does not attract Section 376(2)(n) of IPC. The petitioner also caused the viral of the intimate

photographs and videos of the victim girl in whatsApp and recurringly black mailing her.

Reverting to the facts of the case and applying the principles as discussed hereinabove, this Court is not inclined to go by the date of birth as relied

on the date of birth as recorded in the register of Anganwadi, especially, due to leaning of the Apex Court on this issue as discussed hereinabove but

also due to the fact that same now raises a presumption in law, albeit rebuttable, by way of a deeming fiction in terms of Section 94 of the Juvenile

Justice (Care and Protection of Children) Act, 2015. Thus, the age of the victim as per matriculation certificate is 27.12.2001 which is taken to be 17

years at the time of the offence, thereby prima facie attracting provisions of the Prevention of Children from Sexual Offences Act, 2012 as well as the

other offences adumbrated in the FIR.

Considering the aforesaid discussion, submissions made and taking into account a holistic view of the facts and circumstances of the case at hand,

this Court is not inclined to entertain the instant appeal.

It is, however, clarified that the observations made hereinabove shall not prejudice the appellant in any way and the Trial shall proceed

uninfluenced by any of the prima facie observations. The Ld. Trial court may do well to apply the law as discussed hereinabove in the event the issue

of age comes up before it and be guided by the aforesaid observations.

The CRLA is accordingly dismissed.