Sayan @ Falguni Bauri vs The State Of West Bengal & Anr
2022 Latest Caselaw 3190 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                            Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri

                         CRA 128 of 2021

                     Sayan @ Falguni Bauri
                              Vs.
                The State of West Bengal & Anr.


For the petitioner :   Mr. Dipankar Dandapath, Adv.,
                       Mr. Bhaskar Seth, Adv.


For the State      :   Mr. Narayan Prasad Agarwala, Adv.,
                       Mr. Pratick Bose, Adv.


Heard on           : 13.06.2022 & 14.06.2022

Judgment on        :   14.06.2022


Bibek Chaudhuri, J.

The instant appeal is directed against judgment and order of

conviction and sentence dated 6 th September, 2019 and 7th September,

2019 respectively passed by the Learned Additional Sessions Judge,

Khatra in the district of Bankura in Special Case No. 6/2018 convicting

the appellant for committing offence under Section 376 of the Indian

Penal Code as well as Section 4 of POCSO Act, 2012. The appellant was

further convicted for committing offence under Section 417 of the Indian

Penal Code. For the offence under Section 376 of the Indian Penal Code

as well as Section 4 of the POCSO Act, the Learned Trial Judge handed

down sentence to the appellant for rigorous imprisonment for seven

years with fine of Rs.50,000/-, in default, to suffer further imprisonment

for three months. For the offence under Section 417 of the Indian Penal

Code the appellant was sentenced to suffer rigorous imprisonment for

one year with fine of Rs.10,000/-, in default, simple imprisonment for

one month. The aforesaid judgment and order of conviction and

sentence is assailed in the instant appeal.

Vide order dated 13th April, 2022 this Court dispensed with the

formality the preparation of paper book and proposed to hear out the

instant appeal on the basis the materials in lower Court record.

Indpur Police Station Case No. 18/2018 was registered on 7 th

March, 2018 under Sections 376/417 of the Indian Penal Code and

Section 4 of the POCSO Act on the basis of a written complaint

submitted by one Bharati Bauri. It is alleged in the said written

complaint that the daughter of the de facto complainant who was at the

relevant point of time aged about 16 years had love affair with the

appellant. The appellant cohabited with the said daughter of the de

facto complainant for last one year on false assurance of marriage. On

4th March, 2018, the de facto complainant came to know that the

appellant was making arrangement to marry another girl. After getting

such news the de facto complainant and her daughter asked the

appellant as to why he did not want to marry the daughter of the de

facto complainant. At this, the appellant straightway refused to marry

her. It is also alleged that on 4 th March, 2018 the appellant called the

daughter of the de facto complainant stating that he would marry her.

Police took up the case for investigation and on completion of

investigation submitted charge-sheet under the above stated penal

provisions against the appellant. Since the offence under the POCSO Act

is triable by the Learned Special Judge, the case was transferred to the

Court of the Learned Special Judge at Khatra for trial and disposal. The

Learned Trial Judge framed charge against the accused, examined as

many as 12 witnesses on behalf of the prosecution, examined the

accused under Section 313 of the Code of Criminal Procedure and finally

delivered the impugned judgment and passed the order of conviction

and sentence.

The Learned Advocate for the appellant has assailed the

judgment passed by the Trial Court on the ground that the

prosecution has failed to prove that the victim girl was a minor. In the

absence of such proof with all reasonable certainty, an accused

cannot be held guilty under any provision of the POCSO Act, 2012. It

is further submitted by the learned advocate for the appellant that

even if the evidence of the witnesses on behalf of the prosecution is

accepted, it would be found that at the relevant point of time the

victim was aged about 16 years and six months. It is the case of the

prosecution that there was a love affair between the appellant and the

victim. As a result of such love affair they cohabited. Thus, the victim

was a consenting party as she had reached the age of discretion,

knew the effect of such physical relationship with the accused, charge

under Section 376/417 of the Indian Penal Code would not lie.

Thirdly, it is submitted by the learned advocate for the appellant that

prosecution has failed to establish the place of occurrence. In this

regard he takes me to the sketch map and index of the place of

occurrence where the place of occurrence was shown as an east

facing pucca built urinal of Choukighata primary school situated at

village Choukighata. According to the learned advocate for the

appellant the incident of sexual intercourse between two persons

cannot be possible in a public urinal where it is supposedly used by all

the students of the said primary school. There is absolutely no

evidence on behalf of the prosecution that the said urinal remained

open even after school hours. It is also urged by the learned advocate

for the appellant that the witnesses on behalf of the prosecution was

consistently trying to develop the prosecution case. The prosecution

also failed to produce the admit card which relied upon to prove the

date of birth of the victim girl. The victim girl herself stated that the

date of birth was recorded in the admit card as per her statement.

The parents of the victim girl could not say even the date, month or

year of the birth of the victim girl. Under such circumstances, the

Court below committed an apparent error in relying on the photostat

copy of the admit card of the victim girl which was marked exhibit

after objection. In view of such lacuna in the prosecution case, it is

submitted by the learned advocate for the appellant that the accused

is entitled to be acquitted from the charge.

Learned P.P.-in-charge, on the other hand, submits that the

prosecution has been able to bring home the charge against the

accused. It is proved by satisfactory evidence that the victim girl was

a minor at the time of sexual intercourse committed upon her by the

appellant. It is also submitted that the date of birth recorded in the

admit card issued by the West Bengal Board of Secondary Education

is a relevant document on the basis of which the Court in the

absence of any other material can come to a conclusion on the age of

a particular person, her in this case the victim girl.

Having heard the learned advocates for the parties, it is

apparent before the Court that the fate of this case mainly depends

upon the question as to whether the learned trial Judge was justified

in holding the victim girl a minor on the basis of a photostat copy of

the admit card.

It is found from the record that during investigation the

Investigating Officer seized the original admit card from the

possession of the victim girl in the seizure list. The father of the

victim girl put his signature and her mother put her L.T.I. After

seizure the original admit card was kept under the custody (Zimma)

of the father of the victim girl by executing a custody bond

(Zimmanama). Both the seizure list and the custody bond were

exhibited. The photostat copy of the original admit card was kept in

the case diary and it was exhibited during trial with objection on

behalf of the defence.

It is needless to say that the admit card seized by a public

authority is admissible in evidence and entries thereof are relevant

when such entries are made in public record or an electronic record

made in performance of duty under Section 35 of the Evidence Act.

Section 35 of the Evidence Act runs thus:-

"35. Relevancy of entry in public record or an

electronic record made in performance of duty.- An

entry in any public or other official book, register or record

or an electronic record, stating a fact in issue or relevant

fact, and made by a public servant in the discharge of his

official duty, or by any other person in performance of a duty

specially enjoined by the law of the country in which such

book, register, or record or an electronic record is kept, is

itself a relevant fact."

The question as to whether an entry of date of birth in the school

certificate or an admit card or school register is a contentious issue

debated at the Bar for long. In Munna vs. Kameshri: AIR 1929

Oudh 113 it was held that entry as to age in school register based on

the statement of deceased father is admissible. In Liladhar vs.

Mabibi: AIR 1934 Nagpur 44 it was held that the school certificates

are admissible in evidence. Subsequently in State of Chhattisgarh

vs. Lekhram reported in AIR 2006 SC 1749 the Hon'ble Supreme

Court was pleased to hold that a register maintained in a school is

admissible in evidence to prove date of birth of the person concerned

in terms of Section 35 of the Indian Evidence Act. Such dates of

births are recorded in the school register by the authorities in

discharge of their public duty. An entry in school register with regard

to age is not conclusive but it has evidentiary value. Subsequently, in

Babloo Pasi vs. S.O. Jharkhand reported in (2008) 13 SCC 133

the Hon'ble Supreme Court observed that 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.

In Smt. Dimple vs. Rajesh Baluni reported in AIR 2016

Uttarakhand 17 it is held that the entry of date of birth made in

school certificate is relevant to determine that the petitioner was

under 21 years and thus was not entitled to contest election of Zila

Parisad. In Desh Raj vs. Bodh Raj reported in (2008) 2 SCC 186 it

is held by the Supreme Court that having regard to the provision of

Section 35, entries in school admission registers in regard to age,

caste etc. have always been considered as relevant and admissible. In

Ravinder Singh Gorkhi vs. S.O. U.P. reported in AIR 2005 SC

2157 the Hon'ble Supreme Court held that determination of the date

of birth of a person before a Court of Law, whether in a civil

proceeding or a criminal proceeding, would depend upon the facts and

circumstances of each case. Such a date of birth has to be

determined on the basis of the materials on records. It will be a

matter of appreciation of evidence adduced by the parties. Different

standards having regard to the provision of Section 35 of the Evidence

Act cannot be applied in a civil case or a criminal case.

The age of 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 minor. A court of law for the purpose

of determining the age of a 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.

We are, therefore, of the opinion that until the age of a person

is required to be determined in a manner laid down under a statute,

different standard of proof should not be adopted. It is no doubt true

that the court must strike a balance. In case of a dispute, the court

may appreciate the evidence having regard to the facts and

circumstance of the case. It would be a duty of the court of law to

accord the benefit to a juvenile, provided he is one. To give the same

benefit to a person who in fact is not a juvenile may cause injustice to

the victim.

Relying on the above principles let us now consider the evidence

on record of the instant case. It is true that except the admit card

issued by the West Bengal Board of Secondary Education in the name

of the victim girl prosecution could not produce any evidence in

support of the age of the victim. It is needless to say that entries in

the admit card is made by a statutory authority, i.e., the Board of

Secondary Education in discharge of its official duty. Therefore, the

recording of date of birth of the victim on the admit card issued by a

statutory authority is relevant and admissible under Section 35 of the

Evidence Act. However, it is also found from the record that the

parents of the victim could not state the date of birth of the victim.

There is only one document i.e., the photostat certified copy of the

admit card wherefrom the age of the victim can be ascertained. At

this stage this falls for consideration as to whether the trial Court was

wrong in accepting such entry in the admit card to calculate the age

of the victim. In the absence of any document with regard to the

date of birth or the age of the victim, the evidence adduced by the

prosecution must be taken into consideration because it is not the

case of the defence that the victim was major at the time of alleged

incident. In a case of rape or penetrative sexual assault, the victim is

the best witness, if her evidence is trustworthy, unblemished and free

from any contradictions. In other words, if the evidence of the victim

is of sterling quality, the Court can accept such evidence without any

corroboration. The victim girl stated that she was aged 16 years and

six months at the time of occurrence. Mere arithmetical calculation

with the help of the admit card of the victim girl supports the case of

the prosecution. On careful perusal of the cross-examination made

on behalf of the accused to the victim and her parents it was not even

suggested that the victim was more than 18 years or at least attained

the age of 18 years at the time of alleged occurrence. Therefore, the

evidence adduced by the victim with regard to her date of birth, i.e.,

the entry of her date of birth in the admit card shall be accepted by

the Court on the ground of non-traverse. From the statement of the

victim recorded under Section 164 of the Code of Criminal Procedure

as well as the statement made by her during her medical examination

and also at the time of evidence the victim did not suppress that he

had love relation with the accused and she cohabited with the accused

for 10/12 times during the span of one year. The said fact was

recorded by the Medical Officer (P.W.10). P.W.10 was specifically

asked during cross-examination that if two fingers will admit easily

into the vagina and if the girl had sexual intercourse with a man for

10/12 times in a span of one year. The Medical Officer replied in the

affirmative. I fail to understand as to why this assertion in cross-

examination will not be tagged with the affirmative statement on oath

by the de facto complainant. Thus, on careful appreciation of the

evidence on record and the points of law involved on the subject this

Court is of the view that the learned trial Judge correctly held that the

victim was minor and the accused/appellant had committed

penetrative sexual assault upon the victim on promise of marriage

and, therefore, he was rightly convicted under Section 4 of the POCSO

Act. It is submitted by the learned advocate for the respondent that

the accused cannot be held guilty under the charge of Section 376 of

the Indian Penal Code because of the fact that she has already

attained the age of discretion. Cohabitation between the daughter of

the de facto complainant and the accused was the result of love affair.

The victim knew the consequence of such consent. Therefore, the

alleged act ought to be considered as a consensual sex.

However, in my considered view the law relating to the age of

discretion has undergone an important change after pronouncement

of the judgements by the Supreme Court in Satish Kumar Jayanti

Lal Dabgar vs. State of Gujarat; (2015) 7 SCC 359 and State of

Madhya Pradesh vs. Preetam: (2018) 17 SCC 658.

In Satish Kumar (supra) the appellant kidnapped a minor

below the age of 16 years and enticed her away to marry and had

sexual intercourse. The Hon'ble Supreme Court affirmed the order of

conviction and sentence passed under Section 376 of the Indian Penal

Code.

In Preetam (supra) it was held on the basis of admission

register of the school and evidence of P.W.8, the Headmaster of

primary school who had stated that the date of the birth of the

prosecutrix was 16th May, 1981 which means that on the date of

occurrence she was aged about 12 years. The High Court refused to

consider the evidence of P.W.8 and also the school certificate on the

ground that person who had admitted the prosecutrix in school was

not examined. The Hon'ble Supreme Court was pleased to hold that

such appreciation of evidence was improper since each and every

case of the prosecution cannot be expected to do so. Thus, the

prosecutrix was held to be a minor and charge under Section 376 of

the Indian Penal Code was held to be proved.

Last but not the least the offence under the POCSO Act enjoins

a provision of reverse burden in Section 29 of the said Act. I am not

unmindful to note that the reverse burden will come into play only

when the prosecution is able to prove the foundational fact. In the

instant case, the prosecution proved the foundational fact before the

trial Court. Therefore, burden shifts upon the accused to prove that

he was not guilty on which he fell.

However, in the instant case, the learned trial Judge committed

an error in convicting the accused under Section 417 of the Indian

Penal Code because in order to prove charge under Section 417 of the

Indian Penal Code. Prosecution was required to be proved that from

the very beginning the appellant had an intention to cheat the victim.

The evidence on record is otherwise. Both of them fell in love which

went up to establishment of physical relationship. Subsequently, the

boy retracted from his proposal to marry her. The subsequent action

on the part of the appellant cannot be said to be a case of cheating

within the meaning of Section 415 of the Indian Penal Code.

For the reasons stated above, I do not find any error in the

judgment and order of conviction passed by the learned trial Court

under Section 376 of the Indian Penal Code and also under Section 4

of the POCSO Act. However, the order of conviction and sentence for

the offence under Section 417 of the Indian Penal Code is set aside.

With regard to the sentence I do not find any scope to interfere

because the appellant was awarded minimum sentence and this Court

has no authority to alter the order of sentence in the instant case.

Accordingly, the appeal is allowed in part. The order of conviction and

sentence passed under Section 376 of the Indian Penal Code read

with Section 4 of the POCSO Act is affirmed. However, the order of

conviction and sentence passed under Section 417 of the Indian Penal

Code is set aside.

The appeal is, thus, disposed of.

The appellant is directed to surrender before the trial Court

within two weeks from the date of communication of this order.

Let a plain copy of this judgment duly countersigned by

Assistant Court Officer of this Court be handed over to the learned

advocate for the appellant free of cost.

The appellant be informed that he is at liberty to file an appeal

against the instant judgment before the Hon'ble Supreme Court and

he is also entitled to have free legal aid by the West Bengal Legal

Services Authority.

(Bibek Chaudhuri, J.)