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Judgment
214 paragraphs · 7,376 wordsNaresh 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 25-7-2022, passed by learned Upper District and Sessions Judge, Fast Track Special Court (POCSO Act), Bhatapara, Distt. Balodabajar-Bhatapara (henceforth referred to as ‘trial Court’) in Special Criminal Case No. H-35/2021, whereby the appellant-accused has been convicted for offence under Section 363, 366, 376(2)(n), of the Indian Penal Code, (in short, hereinafter referred to as ‘the IPC’) and Section 4 and 6 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.
sentence
Default stipulation
Default stipulation
1.
363, IPC
7 years RI
Rs. 500/-
1 month RI
2.
366, IPC
10 years RI
Rs. 1000/-
1 month RI
3.
376(2)(n), IPC
20 years RI
Rs. 1000/-
1 year RI
4.
4 and 6,
POCSO Act
10 years RI
Rs. 1000/-
1 year RI
All the substantive jail sentences have been directed to run concurrently.
Facts of the case in brief are that the maternal grandfather of the victim/prosecutrix lodged a report at PS Bhatapara Rural, Distt. Balodabajar-Bhatapara that on 20-9-2020 his granddaughter, aged 15 years 06 months, along with other family members had slept in their room. In the morning of 21-9-2020, when he went to the room, he saw that the victim was not in the room. She had gone somewhere without informing. On the above report of the complainant, missing report No. 57/2020 was registered. Subsequently, FIR bearing Crime No. 412/2020 under Section 363 IPC was registered against unknown person. During investigation, the victim was recovered from the possession of accused on 10-4-2021 and the statement of the victim was recorded. Site map was prepared. Progress report of Class 5th, Dakhil Kharij register and Halafnama register were seized in which date of birth of victim is mentioned as 21-3-2005. Underwear of victim and accused were seized. The victim and accused were sent for medical examination. Vaginal swab, vaginal slides and underwear of the victim and underwear of accused were sent for chemical examination to the FSL, Raipur from where report has been received that semen stains and human spermatozoa have not been found in any article. Statement of the victim was recorded under Section 164 of the Cr.P.C.
In the statement recorded under Section 164 of the Cr.P.C., the victim stated that the accused took her to Delhi, he committed sexual intercourse with her against her wish, and he also promised to marry her. On the basis of above statement, offence under sections 366, 376 of the Indian Penal Code, 4, 6 of the POCSO Act was added. After usual investigation, charge sheet under Section 363, 366, 376 of the IPC and Section 04 and 06 of the POCSO Act was filed against the accuse in the Special Court.
Learned trial Court framed charges under Section 363, 366, 376(2)(n) of IPC and Section 4 and 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 examined following witnesses :-
1
P.W. 1 Grand father of victim
2
P.W. 2 Kamta Prasad Jaiswal, Head Master of school
3.
P.W. 3 Dr. Sushma Maheshwari, examined the victim
4
P.W. 4 Dr. Rajendra Maheshwari, Examined the accused
5.
P.W. 5 Ramawatar Dhruv, Investigating Officer
6.
P.W. 5 Taresh Sahu, Dy. S.P.
7.
P.W. 6 victim
8.
P.W. 7 Sister of victim
9.
P.W. 8 Roshan Singh Rajput, Station House Officer
Besides aforesaid ocular evidence, prosecution also exhibited following documents :-
Sr.
Particulars
1
ExP-01 FIR
2
ExP-02 Site map
3
ExP-03 Recovery panchnama of victim
4
ExP-04 Consent letter
5
ExP-05 Seizure memo of Progress report of victim of class 5, year 2015-16, Admission No. 740 dated 1-7-2013, in which date of birth is mentioned as 21-3-2005
6
ExP-06 Seizure memo of underwear of victim
7
ExP-07 Seizure Memo of underwear of accused
8
Ex. P-8 Swab and slide of victim
9
Ex. P-9 Seizure memo of Dakhil Kharij register and Halafnama register
10.
Ex. P-10 Arrest memo of accused
11
Ex. P-11 Notice under Section 160, Cr.P.C. to witnesses
12
Ex. P-12 Spot Map
13
Ex. P-13 Supplementary statement of complainant/grand father of victim
14
Ex. P-14 Request to Head Master for providing Dakhil Kharij register
15
Ex. P-15 Supurdnama memo of Dakhil Kharij register and Halafnama register
16
Ex. P-16-A Letter to Female medical Officer for examination of victim
17
Ex. P-16 Consent letter for examination of private part
18
Ex. P-17-A request letter for examination of underwear of victim
19
Ex. P-17 Examination report underwear of prosecutrix
20
Ex. P-18A Request letter for examination of underwear and private part of accused
21
Ex. P-18 Examination report of accused and his underwear
22
Ex. P-19A Request letter for examination of underwear and private part of accused
23
Ex. P-19 doctor sent article for chemical analysis
24
Ex. P-20 Information of arrest
25
Ex.P-20 Memo to FSL for examination of articles.
26
Ex. P-21 Receipt of FSL
27
Ex. P-22 FSL report
28.
Ex. P-23 Consent letter
29.
Ex. P-24 Statement of victim u/S. 164, Cr.P.C.
30.
Ex. P-25 Memo for recording statement of victim
31.
Article A-1 Progress report of victim of class 5th.
32
Article A-2-C copy of Halafnama register
32
Article A-3-C copy of Dakhil Kharij register
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 stated that he will examine Nohar Jogi son of Sundar Lal, but he did not produce him for recording his statement.
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 lawful evidence. In this regard, Dakhil-Kharij register, Halafnama registered, progress report of Class 5 of the victim have been seized, which shows that her date of birth is 21-3-2005, 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 prosecution has failed to prove by adducing cogent evidence that, on the date of incident, victim was minor, hence the finding recorded by learned trial Court in this regard is not sustainable. Learned counsel for the appellant relied on judgment of Hon’ble Supreme Court in the case of P. Yuvaprakash Vs. State represented by Inspector of Police [2023 SCC Online SC 846].
8.1 Learned counsel for the appellant further submits that the victim in her statement under Section 164 of the Cr.P.C. has stated that in Delhi, there were other persons of their village also, but she has not stated that she ever told any one that the accused has brought her on pretext of marriage and sexually exploited her. The victim herself had gone to earn her livelihood along with the villagers. She was pressurizing the accused/appellant to marry her but he did not marry, therefore, false allegation of abduction and rape has been made against him. It is further submitted that medical report and FSL report also do not support the prosecution case as no injury or stains of spermatozoa or human spermatozoa have been found in the undergarments, vaginal swab, vaginal slide of victim and underwear of the accused. It is submitted that victim has stated in her statement that the accused used to commit marpeet with her and also leveled a bald allegation that he made physical relation with her, but this facts she did not narrate to any one, despite other persons of her village also resided there, as no such persons have been examined by prosecution in support of her statement. Therefore, looking to the entire ocular and documentary evidence, it is a fit case where benefit of doubt must be given to the accused and he should be acquitted of all the charge.
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.
Mr. Veer Verma, learned counsel appearing for the objector has not opposed the appeal.
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, victim was minor on the date of incident i.e. on 20-9-2020, because as per school record, her date of birth is 21-3-2005, accordingly, her age was 15 years, 6 months on the date of incident.
To prove the date of birth of victim, prosecution has seized Progress Report of victim of Class 5th of Government Primary School, Mehharsakha, Dakhil- Kharij register of Government Primary School, Gorddi of the year 2011-12 and Halafnama register of the year 2011-12. As per Dakhil – Kharij register, the victim was admitted in Class 1 in the year 2011-12 and Halafnama register shows that she was got admitted by her grand-father (P.W. 1). In all these above documents, the date of birth of the victim is mentioned as 21-3-2005.
Statement of victim was recorded on 4-6-2022, in which she has stated that at present she is aged 17 years. Incident occurred on 20-9-2020 i.e. about 1 years and 8 months prior to the date of recording of her statement, therefore, according to her, her age on the date of incident was about 15 years and 4 months. She has further stated that in Adhar card her date of birth is mentioned as 12-6-2005.
Statement of grand father of the victim (P.W. 1) was recorded on 28-10-2021, in which he has stated that at present victim is aged 16 years. Incident occurred on 20-9-2020 i.e. about 1 year prior to the date of recording of his statement, therefore, according to him, her age on the date of incident was about 15 years. In cross-examination, he has stated that he could not remember the date of birth of the victim. He has further stated that earlier by touching the ear by hand, age of the child used to be assessed and he has got recorded her date of birth on guess. P.W. 7 is sister of the victim, she has stated in her statement recorded on 4-6-2022 that at present, the victim is aged about 17 years, therefore, according to her, victim was about 15 years and 4 months at the time of incident. Kamta Prasad Jaiswal is in-charge Head Master of Government Primary school, Gordi, Distt. Balodabajar. As per his deposition, he was posted in the year 2011-12 in aforesaid school when the victim was got admitted there in Class 1. He has proved Dakhil- Kharij register and Halafnama register, in which date of birth of victim is mentioned as 21-3-2005. In cross-examination, he has stated that he has recorded date of birth of victim on the basis of documents of Kotwar, however this fact is not mentioned in the Dakhil Kharij register and Halafnama register, and also not supported by the grand father of victim. Dr. Sushma Maheshwari, who examined the victim has assessed and noted her age as 16 years and in her statement she has stated that she noted the age as told by the victim.
As mentioned above, in Dakhil kharij register, Halafnama register and progress report of class 5 of victim, date of birth of victim has been mentioned as 21-3-2021. Though the victim has stated in her statement that in Adhar card, her date of birth is mentioned as 12-6-2005, and thus she has stated two different date of birth, despite that, even on the basis of two date of birth, her age is found to be below 18 years, which is well supported by other evidence. Therefore, it is clear that from class 1 to class 5th, the date of birth of victim is maintained as 21-3-2005. Further this date of birth has been disclosed 9 years prior to the date of incident i.e. 20-9-2020, therefore, we do not find any reason to discard the same.
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 to the facts of instant case, oral and documentary evidence adduced by the prosecution demonstrate that on the date of incident, the victim was minor. It cannot be denied that with regard to age of any child, evidence of his/her father, mother or close relation is the best evidence and when they say that at the time of incident, age of their child was 16 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 years of the incident, 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 21-3-2005, on the date of incident, she was minor i.e. below the age of 18 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 aforesaid date of birth has been mentioned in school record of government school, where victim first attended, that too, prior to 8-9 years of date of incident and victim’s age based on that date of birth is also supported by the deposition of her grand father. There appears no reason as to why grand father of victim of such heinous offence would record wrong date of birth of 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 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.
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 18 years.
So far as allegation of commission of kidnapping and rape of victim by the accused is concerned, she has stated that she met with the accused, he said to go somewhere, he took her to Haryana and kept her in a hut, he also used to beat her. She has further stated that the accused had made physical relation without performing marriage and when she asked her for marriage, he said that they will marry in the village. When she fell sick, the accused brought her to Bhatapara, from where police recovered her on 10-4-2021. In cross-examination, she has stated that the accused had taken her to Haryana on the pretext of marriage and made physical relation against her wishes and also used to beat her. In cross-examination, she has further stated that on the date of incident, she went out of the village along with the accused and accused kept her in the house of his friend. They went to Haryana on a Pick-up and at that time, 6-7 other male female persons were also there. They resided in Haryana for 6 – 7 months. She has further stated that she had not told any one of the villagers that the accused had brought her by seducing. Sister of the victim (P.W. 7) has stated in her deposition that the incident is of night, family members had slept, when her grand father went to room, the victim was not there. Grand father of the victim has stated that the victim went out of house without informing.
Dr. Sushma Maheshwari, who examined the victim has reported in her report that there was no sign of any injury on her private part and her hymen was old ruptured. She cannot say whether there was recent forcible intercourse committed with the victim. As per FSL report, no spermatozoa stains and human spermatozoa were found in vaginal swab, vaginal slide, underwear of the victim and underwear of the accused.
If we scrutinize the above evidence, it is manifest that on the date of incident, the accused had taken the minor victim from the lawful guardianship of her grand father to Haryana and kept her with him till her recovery on 10-4-2021 from possession of accused vide Ex. P-3. The defence has not been able to elicit anything in the cross-examination of the prosecution witnesses to discard the testimony of the prosecution witness in this regard. In the considered opinion of this Court, the trial Court has rightly convicted the accused for offence under Section 363 and 366 of the IPC.
So far as offence under Section 376 (2)(n) of the IPC and Section 4 and 6 of the POCSO Act is concerned, the victim has stated in her deposition that the accused took her to Haryana, kept her in a hut and made physical relation with her against her wishes. The victim has stated in her examination-in-chief that accused took her to Haryana and kept her in a hut and made physical relation with her without performing marriage with her. She has repeated this allegation even in suggestive question taken by learned Public Prosecutor and has admitted that the accused made physical relation with her without her wishes. This fact has not been rebutted by learned defence counsel in her cross-examination. Dr. Sushma Maheshwari, who medically examined the victim on the date of her recovery on 10-4-2021, has deposed that there was no injury on the body or private part of the victim and her human was old ruptured. She prepared two vaginal slides and two vaginal swabs of the victim. The vaginal swabs, vaginal slides and underwear of victim and underwear of the accused were sent for chemical examination, but no spermatozoa stains and human spermatozoa was found in swab (Article A), slide (Article B), underwear of victim (Article C) and underwear of accused (Article D). Thus, deposition of victim with regard to sexual intercourse by the accused with her is not supported by medical evidence and FSL report. But it has been proved that, the accused had taken the victim from 20-9-2020 and kept her with him in Haryana and she was recovered from his possession on 10-4-2021 and further that as per deposition of victim, the accused had made physical relation with her which is unrebutted in her cross-examination and nothing has been brought by the defence to disbelieve aforesaid statement of the victim. In view of above, we do not find any good ground to discard aforesaid statement of the victim.
It is settled proposition of law that conviction of the accused could be based on sole testimony, without corroboration and it has also been held that the sole testimony of prosecutrix should not be doubted by the court merely based on assumptions and surmises.
In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(2019) 11 SCC 575}, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it was observed and held as under:
“29. It is now well- settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30].”
In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In paragraphs 6 and 7, it was observed and held as under:
“6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).]
It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635).”
In the instant case, although the victim has not stated detailed fact with regard to her sexual exploitation by the accused, but considering the fact that the accused kept her with him for about 7 months and in between, he sexually exploited her and nothing has been elicited in her cross-examination to discard aforesaid statement of the victim, hence we find that learned trial Court has rightly convicted the accused for the offence of sexual exploitation of victim.
Since the accused had sexually exploited the victim for about 7 months, therefore, this act of the accused falls under Section 5(l) of the POCSO Act and which is punishable under Section 6(1) of the POCSO Act. For such offence, minimum punishment provided under Section 6(1) of the POCSO Act is 20 years. Learned trial Court though has convicted him under Section 6 of the POSCO Act, but sentenced to undergo only 10 years RI, i.e. below the minimum sentence provided for this offence, as Section 6(1) of the POSCO Act has been amended with effect from 16-8-2019 and the incident occurred on 20-9-2020. Thus, we find the impugned judgment incorrect to the above extent, therefore, we accordingly modify the impugned judgment.
In view of above discussion, the appeal is dismissed. We convict and sentence the appellant/accused in following manner :-
Sr.
Sentence u/S.
sentence
Default stipulation
Default stipulation
1.
363, IPC
7 years RI
Rs. 500/-
1 month RI
2.
366, IPC
10 years RI
Rs. 1000/-
1 month RI
3.
376(2)(n), IPC
20 years RI
Rs. 1000/-
1 year RI
4.
5(l) and 6,
POCSO Act
20 years RI
Rs. 1000/-
1 year RI
All the substantive jail sentences are directed to run concurrently.
The appellant is stated to be in jail since 10-4-2021 being the date of arrest. He is directed to serve out the sentence as awarded to him.
Let the lower court record and copy of this judgment be sent to the trial court forthwith for necessary information and its compliance.