Chattisgarh High Court

Bhaiyaram Satnami vs The State Of Chhattisgarh on 6 September, 2021

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                              Criminal Appeal No.818 of 2016

                          Judgment Reserved on :               10.8.2021

                          Judgment Delivered on :                6.9.2021

Bhaiyaram Satnami, aged about 20 years, son of Lilaram Satnami, resident of
Village Baheradih, Thana Jaijaipur, District Janjgir-Champa, Chhattisgarh
                                                                  ---- Appellant
                                    versus
The State of Chhattisgarh through Police Station Jaijaipur, District Janjgir-
Champa, Chhattisgarh
                                                               --- Respondent
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For Appellant : Ms. Meenu Banerjee, Advocate For Respondent : Shri Akash Pandey, Panel Lawyer

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal has been preferred against judgment dated 15.6.2016

passed by the First Additional Sessions Judge, Sakti, District

Janjgir-Champa in Special Sessions Trial No.15 of 2015, whereby

the Appellant has been convicted and sentenced as under:

Conviction Sentence

Under Section 363 of the Rigorous Imprisonment for 5 years Indian Penal Code and fine of Rs.5000 with default stipulation Under Section 366A of the Rigorous Imprisonment for 5 years Indian Penal Code and fine of Rs.5000 with default stipulation Under Section 6 of the Rigorous Imprisonment for 10 Protection of Children from years and fine of Rs.10,000 with Sexual Offences Act, 2012 default stipulation (henceforth 'the Pocso Act') All the jail sentences are directed to run concurrently

2. According to the prosecution case, at the relevant time, age of the

prosecutrix (PW3) was about 16 years and 4 months. According to

the entries of Dakhil Kharij Register (Ex.P21C), her date of birth is

28.4.1999 and the date of incident is 17.2.2015. On 18.2.2015,

father of the prosecutrix, namely, Tankor Narayan (PW4) lodged

First Information Report (Ex.P7) of missing of the prosecutrix on the

basis of which an offence was registered under Section 363 of the

Indian Penal Code. During the course of investigation, the

prosecutrix was recovered from Bus Stand Hasaud on 10.8.2015

vide Ex.P28. Her statement was recorded under Section 161 of the

Code of Criminal Procedure on the basis of which other offences

were added. Statements of other witnesses were also recorded

under Section 161 of the Code of Criminal Procedure. On

completion of the investigation, a charge-sheet was filed against

the Appellant. The Trial Court framed charges against him.

3. To bring home the offence, the prosecution examined as many as

17 witnesses. Statement of the Appellant was also recorded under

Section 313 of the Code of Criminal Procedure in which he denied

the guilt, pleaded innocence and false implication. No witness has

been examined in his defence.

4. On completion of the trial, the Trial Court convicted and sentenced

the Appellant as mentioned in 1 st paragraph of this judgment.

Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that the

Appellant has been wrongly convicted by the Trial Court without

there being sufficient and clinching evidence on record. From

perusal of the statement of the prosecutrix (PW3), it appears that

she was a consenting party and due to love relationship with the

Appellant she herself left her house and joined the company of the

Appellant. With regard to her age, statements of her mother Anita

Chandra (PW2) and father Tankor Narayan (PW4) are

contradictory. Therefore, their statements are not reliable. The

author of the entries of Dakhil Kharij Register (Ex.P21C) has also

not been examined and on what basis the said entries were

recorded is not made clear and, therefore, the entries of Dakhil

Kharij Register also do not support the case of the prosecution.

Looking to the entire evidence adduced by the prosecution, age of

the prosecutrix was below 18 years at the time of incident, is not

established. In this regard, reliance was placed on Madan Lal v.

Dr. Jaswant Batra, 1994 Cri.L.J. 1767, Bapulal v. State of M.P.,

2002(3) MPHT 70, Lalta Prasad v. State of M.P., (1979) 4 SCC 193

and Raunki Saroop v. State, 1970 Cri.L.J. 1383.

6. Opposing the above arguments, Learned Counsel appearing for

the State supported the impugned judgment.

7. I have heard Learned Counsel appearing for the parties and

perused the record of the Trial Court including statements of the

witnesses and other material.

8. As regards the incident, the prosecutrix (PW3), in her Court

statement deposed that on 17.2.2015 at about 2:00 p.m., the

Appellant gave her a telephonic call and telling her that a party was

organised at the house of his friend and they will return from there

within 2-4 days took her to Jharkhand. From there, he took her to

Bihar and thereafter took her to Punjab. There, he committed

sexual intercourse with her against her will. She further deposed

that father of the Appellant came to Punjab on 8.7.2015 and took

her back from Punjab to Jaijaipur. Thereafter, her parents took her

along with them. In paragraph 6 of her cross-examination, she

admitted that she and the Appellant were studying in a same school

and, therefore, a love relationship had developed between them. In

paragraph 8, she stated that when she was performing journey

along with the Appellant in a train, during that period, the Appellant

had threatened her and, therefore, she did not make any complaint

against him in the train to any of the co-passengers. From her

above admissions, it is established that there was a love

relationship between her and the Appellant since the time of their

schooling and both stayed together at different places, i.e.,

Jharkhand, Bihar and Punjab for total about 5 months and

thereafter she was taken back from Punjab by the father of the

Appellant and she was recovered at Jaijaipur on 10.8.2015. During

the said period of 5 months, she had ample opportunity to raise her

voice and make a complaint against the Appellant and come out of

his clutches, but she did not do so. From her above conduct, it is

clear that she was a consenting party and she herself joined the

company of the Appellant.

9. With regard to age of the prosecutrix (PW3), the entries of Dakhil

Kharij Register (Ex.P21C) are available on record. According to the

said entries, her date of birth is 28.4.1999 and she was admitted in

the school on 9.8.2005 in 1st standard. The said entries are proved

by Kashiram Chandra (PW13), Principal of Sanskar Bharti Higher

Secondary School, Jaijaipur. Though this witness admitted that the

entries of admission of the prosecutrix in the school are not in his

own handwriting and he does not know who had brought the

prosecutrix to the school, Tankor Narayan (PW4), father of the

prosecutrix stated that he himself had taken the prosecutrix to the

school for her admission and he had got the correct entry of her

date of birth registered in the school.

10. In (2013) 7 SCC 263 (Jarnail Singh v. State of Haryana), it is held

by the Supreme Court that for determination of age of the victim

girl, Rule 12 of the Juvenile Justice (Care and Protection of

Children) Rules, 2007 needs to be referred. It is held as under:

"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:

"12. Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the

juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a)(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;

(b) and only in the absence of either (i), (ii) or

(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.

In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year,

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the

case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.

(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

11. On examination of the present case in the light of the above view

taken by the Supreme Court, I find that the entries of Dakhil Kharij

prosecutrix. The entries are of the time of admission of the

prosecutrix in the school in 1 st standard and the same were got

registered by Tankor Narayan (PW4), father of the prosecutrix. I do

not find any reason to disbelieve his statement.

12. Since the four cases relied upon by Learned Counsel appearing for

the Appellant are distinguishable on facts and they do not make

any reference to the Juvenile Justice (Care and Protection of

Children) Rules, 2007, I am of the view that the said cases are not

relevant for the purpose of determination of age of the prosecutrix.

13. Apart from that, in her Court statement also, the prosecutrix (PW3)