Shravan Kumar Sahu vs State Of Chhattisgarh

Ramesh Sinha, CJ

The appeal arises out of the judgment of conviction and order of sentence dated 4.2.2023 passed by the Additional Sessions Judge, Fourth F.T.S.C. (POCSO Act), Durg, District Durg in Special Criminal Case (POCSO) No.96/2022 whereby the appellant has been convicted and sentenced in the following manner :

Sl.

No.

Conviction

Sentence

1.

Under Section 366 of the IPC

Rigorous Imprisonment for 3 years and fine of Rs.100/-, in default of payment of fine to further undergo rigorous imprisonment for 1 month.

2.

Under Section 4 of the POCSO Act

Rigorous Imprisonment for 20 years and fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 year.

The prosecution story, in brief, is that the complainant PW-2 has lodged the report at Mohan Nagar Police Station on 30.05.2022 that he went to his relative’s house at the occasion of Dashgatra on 29.05.2022 at Surajpur and his wife for labour work in rice mill, then the prosecutrix who was minor has left her house by stating to her aunt at about 11.30 A.M. that she is going to shop, but she did not return till evening and then his daughter-in-law has informed him by telephone that the prosecutrix could not return to her house and then he searched her to her relatives and nearby residents, but nothing has been identified and then he fells that someone has abducted the minor daughter and then a report was lodged in Crime No.187/2022 (Ex.P-6) for offence under Section 363 of the IPC. During the course of investigation, the prosecutrix was found on 5.6.2022 and then seizure panchnama (Ex.P-1) was prepared. Statement of the prosecutrix was recorded under Section 164 of the CrPC vide Ex.P-2 and thereafter Sections 366 and 376 of the IPC and Section 4 of the POCSO Act was added against the appellant . Statements of the witnesses were recorded. Undergarments of the prsecutrix was seized vide Ex.P-12. MLC was conducted. The appellant was arrested on 6.6.2022 vide arrest memo Ex.P-10. Patwari prepared spot map vide Ex.P-4. Spot map was also prepared by the investigating officer vide Ex.P-7. Admission & Discharge register of the prosecutrix was seized vide Ex.P-18C.

After completion of investigation, charge-sheet was filed before the Special Judge, Durg under the protection of children from sexual offences Act, 2012.

The trial Court has framed charges against the appellant under Sections 363, 366 & 376(3) of the IPC and Section 4 of the POCSO Act. The appellant abjured his guilt and pleaded innocence.

In order to establish the charge against the appellant, the prosecution examined 12 witnesses. The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trail court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.

Learned counsel for the appellant 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 the incident she was minor and less than 18 years of age. In absence of examination of author of the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the prosecutrix. Dakhil-kharij register is a weak type of evidence. No any Kotwari register or ossification report are 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 mother and father have not produced document with regard to date of birth of the prosecutrix and therefore, there is no legally admissible and convincing evidence available on record to establish that the prosecutrix was minor on the date of incident. Learned counsel further argued that the prosecutrix herself went alongwith the appellant and no alarm has been raised while going alongwith the appellant. In her 164 CrPC statement (Ex.-P-2), the prosecutrix stated that there is a factory near their house where a boy named Shravan worked who is 22 years old and whom she known for 7-8 months. She and Shravan love each other, want to marry each other and live together. When her family members came to know about her relationship with Shravan they started beating her and abusing her while talking to her, after which she did not want to live in her house. She insisted on taking Shravan with her. Due to her young age, Shravan refused to take her with him. But due to her insistence, Shravan took her with him to Amgaon where they stayed in lodge for three days. After three days, they went to Narayanpur where Shravan’s brother lived. They had told Shravan’s brother that they had come for work. Shravan’s brother did not know that they loved each other. During stay at Amgaon lodge, accused Shravan had physical relations with her once. She want to live with Shravan. She had gone with Shravan on her own free will. She did not inform her family before leaving, that is why her father has lodged the report. Therefore, the alleged offences of the IPC and POCSO are not made out against the appellant and he is entitled for acquittal.

On the other hand, learned counsel for the State opposes and contends 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/18C which contains the date of birth of the prosecutrix as 13.01.2007. The school register is admissible piece of evidence to determine the age of the prosecutrix. Therefore, there is no any illegality or infirmity in the findings recorded by the trial Court. The prosecutrix was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her. As such, the impugned judgment needs no interference.

We have heard the learned counsel for the parties and perused the record with utmost circumstance.

In order to consider the age of the prosecutrix, we have examined the evidence available on record. The prosecution relied upon the School admission and discharge register Ex. P/18C which is sought to be proved by PW-9 Smt.Purnima Patankar, the Headmistress of Carrier Public School, Durg. Smt.Purnima Patankar (PW-9) has stated in her deposition that Mohan Nagar Police Station had given notice to her on 2.6.2022 regarding obtaining dakhil kharij register of the victim under Crime No.187/22 for offence under Sections 363, 366A and 376 of the IPC and Section 6 of the POCSO Act. The said notice is Ex.P-16. In para 2, she has stated that she has produced original dakhil kharij register (Ex.P-19) on 11.07.2022 before Mohan Nagar Police Station in which in Serial No.161 name of victim’s mother-father was mentioned and date of birth of the victim was mentioned as 13.01.2007. In para 3 of her cross-examination, she has stated that she has not brought original copy of notice (Ex.P-16) today. In Serial No.161 of dakhil kharij register, the name of the victim has been written on a separate paper. This witness herself states that the name of the student was written twice, hence, the victim’s name was written at that place by putting paper on it. In para 4 of her cross-examination, she admitted that there is no mention in the dakhil kharij register as to who among her family members had come to enroll the victim in the school. In para 5 of her cross-examination, she has stated that today she cannot tell on the basis of which document the victim was admitted in the school.

PW-2, father of the prosecutrix has not stated any date of birth of her. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the prosecutrix.

After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecutrix so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school admission and discharge register it would not be safe to hold that the prosecutrix was minor on the date of incident. The statement of the prosecutrix, her father (PW-2) as also the statement of PW-9 Smt.Purnima Patankar, Headmistress of Carrier Public School, Durg are contradictory to each other and does not inspire confidence upon this court to hold that the date of birth of the prosecutrix is 13.01.2007.

In the matter 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 the matter 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. It was 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 the matter 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.

XXXX XXXX XXX

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 the matter 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 in the impugned judgment has held her minor, hence, we set aside the finding given by the trail Court that on the date of incident the prosecutrix was minor.

So far as the issue of forceful sexual intercourse by the appellant upon the prosecutrix is concerned, we have carefully perused the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-9). In her 164 CrPC statement (Ex.-P-2), the prosecutrix stated that there is a factory near their house where a boy named Shravan worked who is 22 years old and whom she known for 7-8 months. She and Shravan love each other, want to marry each other and live together. When her family members came to know about her relationship with Shravan they started beating her and abusing her while talking to her, after which she did not want to live in her house. She insisted on taking Shravan with her. Due to her young age, Shravan refused to take her with him. But due to her insistence, Shravan took her with him to Amgaon where they stayed in lodge for three days. After three days, they went to Narayanpur where Shravan’s brother lived. They had told Shravan’s brother that they had come for work. Shravan’s brother did not know that they loved each other. During stay at Amgaon lodge, accused Shravan had physical relations with her once. She want to live with Shravan. She had gone with Shravan on her own free will. She did not inform her family before leaving, that is why her father has lodged the report.

In her 164 CrPC statement, she has not stated that the appellant allured or threaten her or used any force while travelling along with him and while making physical relationship with her against her will or consent.

In para 2 of her evidence, the prosecutrix (PW-1) has stated that she had gone to Amgaon by bus with accused Shravan at 11.30 A.M. on the date of incident. People in her family used to torture her on small things which made her upset. She loved the accused so she went with him. After the accused and she reached Amgaon, they stayed in a lodge. The accused had physical relations with her in the lodge with her consent. After that, they stayed in the lodge in Amgaon for two-three days and then went to Narayanpur by bus. They stayed at the house of the accused’ brother in Narayanpur.

They stayed in Narayanpur for three-four days. After 5th June, 2022 the police brought her and the accused back from Narayanpur. In para 5 of her cross-examination, she has admitted that she had gone with the accused of her own free will. She has also admitted that the accused did not take her with him by force.

On close scrutiny of the evidence, it is clear that the prosecutrix was a consenting party. In her 164 CrPC statement (Ex.-P-2), the prosecutrix stated that there is a factory near their house where a boy named Shravan worked who is 22 years old and whom she known for 7-8 months. She and Shravan love each other, want to marry each other and live together. When her family members came to know about her relationship with Shravan they started beating her and abusing her while talking to her, after which she did not want to live in her house. She insisted on taking Shravan with her. Due to her young age, Shravan refused to take her with him. But due to her insistence, Shravan took her with him to Amgaon where they stayed in lodge for three days. After three days, they went to Narayanpur where Shravan’s brother lived. They had told Shravan’s brother that they had come for work. Shravan’s brother did not know that they loved each other. During stay at Amgaon lodge, accused Shravan had physical relations with her once. She want to live with Shravan. She had gone with Shravan on her own free will. She did not inform her family before leaving, that is why her father has lodged the report.

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.

Considering the entire evidence available on record and the conduct of the prosecutrix, we are of the opinion that there is no legal evidence on record to show that the prosecutrix was a minor girl less than 18 years of age at the time of incident, further from her evidence before the trial Court goes to show that she eloped with the appellant on her own sweet will and established physical relationship with him. Therefore, in the above facts and circumstances of the case, offence under Section 366 of the IPC and Section 4 of the POCSO Act would not be made out against the appellant and the trial Court had erred in fact and law in convicting and sentencing the appellant for the aforesaid offences.

For the foregoing reasons, the appeal is allowed and the judgment impugned dated 4.2.2023 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 6.6.2022. He be released forthwith if not required in any other case.

Keeping in view of the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court.

The Lower Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.