State Of U.P. vs Anil Sonkar S/O Santu Sonkar
2023 Latest Caselaw 23344 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:171705-DB
 
Court No. - 46
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 404 of 2023
 

 
Appellant :- State of U.P.
 
Respondent :- Anil Sonkar S/O Santu Sonkar
 
Counsel for Appellant :- Ashutosh Kumar Sand
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

(Ref: Criminal Misc. Delay Condonation Application)

Heard.

Delay in filing the present appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned.

Application stands allowed.

Ref: Appeal

This appeal is by the State alongwith application for grant of leave to challenge the judgment of acquittal passed by the Court below in Special Sessions Trial No.04 of 2013 (State Vs. Anil Sonkar), arising out of Case Crime No.868 of 2013, under Sections 363, 366, 376 of I.P.C. readwith Section 4 of POCSO Act, Police Station Kotwali, District Jaunpur.

As per the prosecution case, the informant gave a written report relating to the incident of 18.06.2013 between 12.00-1.00 PM in the afternoon, as per which he had gone to sell mangoes leaving behind his wife, a disabled son and 15 years old daughter (victim). While other family members had gone to sleep, the accused came to his house and enticed the victim. The son of the informant was at the shop and saw the accused taking the victim on his motorcycle. On the basis of such allegations, Case Crime No.868 of 2013 was registered under Sections 363, 366 of I.P.C. Investigation concluded with the submission of charge-sheet against the accused. The Court concerned upon committal of the case framed charges against the accused under Sections 363, 363, 376 of I.P.C. read with Section 4 of POCSO Act.

The prosecution has produced informant as P.W.1, who has supported the prosecution case. The son of the informant has appeared as P.W.2, whereas victim has appeared as P.W.3. Dr. Shilpi Singh, who conducted the medical examination of the victim has appeared as P.W.4 and other witnesses are formal in nature, and have been produced either to prove the police papers or to establish the date of birth of the victim.

Incriminating material collected during trial were confronted to the accused for recording his statement under Section 313 of Cr.P.C. The accused has denied the allegation and has stated that family of informant had taken loan and merely with an intent to avoid its repayment, a false allegation has been made against him. The defence has also produced Ms. Khursheed as DW 1, who was the Headmaster of R.K. City Montesory, Junior High School, Miyapur, Jaunpur in support of its stand that victim is major. Trial court on the basis of evidence and material produced by the prosecution has come to the conclusion that evidence on record do not justify the implication of accused.

First and foremost the issue relevant in the facts of the case is the minority of the victim. According to the prosecution the victim was below 18 years of age on the date when the incident occurred. In order prove the minority of the victim the prosecution has produced transfer certificate of Class VIII which has also been proved by the teacher of the institution. However, this witness has not been able to disclose the basis on which date of birth was initially recorded in the school record and the previous transfer certificate of the victim was not produced. The documents produced by the defence, however, has been found to have substance as per which the victim was major.

Law is settled that it is for the prosecution to prove that victim is minor. The prosecution, therefore, will have to stand on its own legs to prove the minority of victim. For such purposes, the prosecution has relied upon the transfer certificate of Class VIII. Neither any High School Certificate has been produced nor the records relating to registration of death of birth have been exhibited. In the medical opinion the age of the victim is found to be 19 years.

So far as the transfer certificate of victim is concerned, the relevance of such certificate in the context of determination of age has recently been examined by the Supreme Court in " P. Yuvaprakash Vs. State Rep. by Inspector of Police, (2023) SCC Online SC 846", where the Court has observed that transfer certificate is not one of the basis specified in Section 94 of the Juvenile Justices Act, 2015 for determination of age and, therefore, date of birth of the victim cannot be recorded on the basis of it. Relevant observations of the Supreme Court in the above judgment are extracted herein after:-

?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.?

Since prosecution has failed to produce any admissible evidence on the basis of which the victim could be held to be a minor, we find no error in the reasoning of the Court below in holding that victim was major at the time of commission of the offence.

So far as the allegation with regard to the victim having been enticed is concerned, the facts on record clearly shows that after the victim left with accused she came to Varanasi from where she was taken to Rajasthan. The victim stayed with the accused for two months at Rajasthan. During this entire period of more than two months the victim travelled apparently by public transport and had sufficient means to raise alarm, in the event she was forcibly taken by the accused. No such protest or alarm was ever raised. It is after more than two months that victim has been found alongwith the accused travelling in a tempo and they were arrested on account of the first information report lodged by the father. As against this version of the witness, the Investigating Officer states that victim and accused were separately arrested. This also casts doubt on the prosecution case regarding recovery of the victim. The trial court on the basis of evidence on record has, therefore, found that victim was in fact major and had voluntarily left with the accused. At the time of arrest also none of her belongings including clothes etc. were found and therefore the plea of recovery has also not been accepted. The trial court, therefore, has observed that necessary ingredients to make out an offence under the specified sections are not proved by the prosecution and consequently the accused has been acquitted.

We have carefully examined the judgment of the court below and upon its examination we find that the view taken by the court below is clearly a permissible view, in the facts of the case, and just because a different view could be taken would ordinarily not be a ground for this Court to interfere with the order of acquittal. In such circumstances we find that neither any triable issue is raised before us in this appeal nor any perversity is shown, which may persuade this Court to grant leave to assail the judgment of acquittal. Prayer made by the State for grant of leave is, accordingly, refused and the appeal, consequently, fails and is dismissed.

Order Date :- 25.8.2023

A. K. Singh