Sanju Shakya vs State Of Chhattisgarh
2022 Latest Caselaw 7258 Chatt

                                                                                  1

                                                                          NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                             CRA No. 623 of 2020
     • Sanju Shakya S/o Shri Naresh Sakhya Aged About 22 Years R/o-
       Sabalgadh, Police Station- Sabalgadh, District- Muraina (M.P.)
                                                                ---- Appellant
                                   Versus
     • State Of Chhattisgarh Through- Police Station- Takhatpur, District-
       Bilaspur, CG
                                                             ---- Respondent


For appellant                   : Ms. Upasana Mehta, Adv.
For Respondent/State            : Mr. Neeraj Pradhan, PL.


                    Hon'ble Mr. Justice N.K. Chandravanshi
                                Oral Judgment
3/12/2022
1.           This appeal has been preferred against the judgment of

conviction and order of sentence dated 17-3-2020 passed by the Addl.

Sessions Judge / 1st FTSC (POSCO), Judge, Bilaspur, (CG) in Special

Sessions Case No. 53/2019 whereby the appellant has been convicted and

sentenced as under :-

Sr.      Offence u/S.       Sentence        Fine sentence           Default
No.                                                                 stipulation
1.       363, IPC           5 years RI      Rs. 300/-               6 month RI
2.       366, IPC           7 year RI       Rs. 500/-               6 month RI
3.       6, POCSO Act       10 years RI     Rs. 1,000/-             1 year RI
4.       376, IPC           Not separately sentenced as per provisions of
                            Section 42 of the POCSO Act.



       All jail sentences have been directed to run concurrently.

2.           Facts

of the case, in brief, are that on 2-8-2018, the appellant

abducted the victim girl (P.W. 4) on the pretext of marriage, who was minor

at the time of incident and took her to Jaipur (Rajasthan), kept her for 8

months with him and in between, he sexually exploited her. On the complaint

being made to police by father of the victim, missing report Ex. P-27 was

lodged at PS Takhatpur, Distt. Bilaspur. On being called by her to her father

on phone, police went Rajasthan and recovered the victim girl from rented

house of appellant on 16-3-2019 vide Ex. P-9 from Jaipur, (Rajasthan).

Thereafter FIR Ex. P-7 was lodged against appellant and he was arrested

on 19-3-2019 vide Ex. P-22. The victim was medically examined by Dr.

Divya Agrawal (P.W. 8) on 18-3-2019, in which, she opined that the victim is

habitual to intercourse and suggested for her further medical examination to

ascertain her age. During investigation, police seized Admission and

Discharge Register (Ex. P-2-C) pertaining to study of the victim in Class KG

II from the Principal, Nav Jagriti Hr. Sec. School, Takhatpur, Distt. Bilaspur

(CG) vide seizure memo Ex. P-1, wherein date of birth of victim is

mentioned as 11-4-2001. The appellant was also examined by Dr. Vikash

Gupta (P.W. 7) who found the appellant capable of performing sexual

intercourse. After usual investigation, charge sheet was filed against the

appellant before the Upper Sessions Judge (FTC), Bilaspur.

3. Charges under Section 363, 366, 376 of IPC and Section 6 of

the Protection of Children from Sexual Offence Act, 2012 (in short, 'POCSO

Act') were framed. The appellant abjured the guilt and claimed trial. To bring

home guilt of the accused/appellant, prosecution examined as many as 13

witnesses. Statement of appellant under Section 313 of the Cr.P.C. was

recorded, in which, he pleaded not guilty. He has also taken plea that the

victim herself had gone with him on her own wish and they lived together for

5 months as friend. He has also pleaded that he has not made any physical

relation with her. He has also examined one defence witness in his support.

4. After hearing both the sides, learned trial Court vide impugned

judgment, convicted and sentenced the appellant as mentioned in para 1 of

this judgment. Hence, this appeal.

5. Learned counsel for the appellant would submit that the victim

and appellant had love affairs with each other. Earlier also, she had gone

with the appellant on her own wish and at the time of incident also, she

herself had called appellant and went with him. Thereafter, they resided

together at Jaipur (Rajasthan) for 6 months as husband and wife. It is

further submitted that it is not a case of rape, rather, it is a case of

consensual relation. It is submitted that at the time of incident, the

prosecutrix was not minor. It is further submitted that as per case of

prosecution, statement of prosecutrix and other witnesses, the victim/

prosecutrix (P.W. 4) was said to be aged 17 years at the time of incident, but

in this regard, prosecution has not proved any legal document. The

Investigating Officer K.K. Adil, (P.W. 13), retired Sub Inspector has stated

that vide seizure memo Ex. P-11, he had seized High School certificate of

victim but such certificate has not been proved by the prosecution.

Admission and Discharge Register of KG-II of the victim Ex. P-2-C was

seized vide Ex. P-1, which is proved by P.W. 2 S.P. Samuel, Principal of the

Nav Jagriti Hr. Secondary School, Takhatpur, but it has not been proved that

while admission in school, at whose behest, alleged date of birth of the

victim prosecutrix was recorded as 11-4-2001. Father of the victim (P.W. 6)

has also not stated anything in this regard. Hence, it has not been

conclusively proved by the prosecution that at the time of incident, victim

(P.W. 4) was minor. But this aspect of the matter has not been dealt with by

the Court below in accordance with the law governing the field. Hence, the

impugned judgment is liable to be set aside and the appellant may be

acquitted of all the charges.

6. On the other hand, learned counsel for the State supports the

impugned judgment.

7. Heard learned counsel for the parties and perused the material

available on record.

8. First of all, this Court has to see whether the learned trial Court

rightly determined the age of prosecutrix i.e. below 18 years on the day of

incident ?

9. It appears from the judgment that to determine the age of

prosecutrix below 18 years, the learned trial Court relied upon the Admission

and Discharge register of Class-KG-II of prosecutrix which is proved by PW2

S.P. Samuel, Principal of concerned school. As per the said document, the

date of birth of prosecutrix is 11-4-2001 and accordingly, on the date of

incident, she was below 18 years.

10. Victim (P.W. 4) and her father (P.W. 6) have stated in their

deposition that at the time of incident, age of the victim was 17 years, but

none of them have stated the date of birth of victim. Investigating Officer K.K.

Adil (P.W. 13), retired Sub Inspector, has stated that he had seized the high

school certificate of the victim vide Ex. P-11, but such certificate has not

been filed and proved by the prosecution.

11. The Hon'ble Supreme Court in Madan Mohan Singh -v- Rajni

Kant [(2010) 9 SCC 209] considered a large number of judgments and came

to the conclusion that while considering such an issue and documents

admissible under Section 35 of the Evidence Act, the court has a right to

examine the probative value of the contents of the document. The

authenticity of entries may also depend on whose information such entry

stood recorded and what was his source of information, meaning thereby,

that such document may also require corroboration in some cases.

12. In the present case, prosecution has exhibited Admission and

Discharge register of KG-II of victim of the year 2005 to October, 2009 of

Nav Jagriti Hr. Sec. School, Takhatpur (Ex. P-2-C), which has been proved

by S.P. Samuel (P.W. 2), Principal of the school. In aforesaid Admission and

Discharge register, date of birth of the victim prosecutrix is mentioned as 11-

4-2001, but it has not been proved by any of the prosecution witnesses that

on what basis, aforesaid date of birth of the victim was entered in the

register. Even parents of the victim have also not stated that at whose

behest, date of birth of the victim was mentioned in the school record.

13. As per date of birth shown in Ex. P-2-C, at the time of incident,

age of victim was 17 years and 4 month. In such a short margin, prosecution

is required to conclusively prove the date of birth of the prosecutrix, which

has not been done by the prosecution in the instant case. In such situation,

medical opinion would have played an important role. It is also pertinent to

mention here that Dr. Divya Agrawal (P.W. 8), who examined the victim had

suggested for her medical examination to ascertain her age, but ossification

test was not found to be conducted by the prosecution.

14. After evaluating all the evidences produced by the prosecution,

it is found uncertain that on the day of incident, the prosecutrix was minor, in

absence of ossification test, as suggested by P.W. 8 Dr. Divya Agrawal. The

date of birth of prosecutrix is disputed as entry thereof made in Admission

and Discharge register (Ex. P-2-C) is not reliable in absence of further

corroboration, as other relevant witnesses failed to disclose its source of

information.

15. In such circumstances, on the date of incident, the age of

prosecutrix is doubtful and she might have been major also at that time.

Thus, the finding of trial Court regarding age of prosecutrix on the day of

incident is erroneous and benefit of doubt in this regard should have been

given to the appellant and, hence, he could not be held guilty for offence

under Section 6 of the POCSO Act.

16. Now coming to charges under Section 363, 366, 376 of IPC, it

has been observed above that prosecution has failed to prove beyond

reasonable doubt that on the date of incident, the victim was minor. Victim

Prosecutrix (PW 4) has deposed in her deposition that she was having talk

with the appellant and the appellant asked to marry her and he came to her

twice. Later on, the appellant went to Muraina. On being called by the victim

over telephone, the appellant told her that he is at Murena, thereafter, the

victim herself went to Murena, from where they went Haryana by train, there

the appellant rented a room and performed marriage with her at house. They

remained there for 5 days and then he took her to Rajasthan where they

resided in a rented house. She has further stated that when she telephoned

her father, her father came to take her but she refused to go with him.

Thereafter, her father again went there with police and brought her back to

Takhatpur.

17. The evidence available on record proves that victim had gone to

Muraina on her own and thereafter, both of them lived together in Haryana

and Jaipur (Rajasthan) for about 8 months. Victim has further deposed that

the appellant had married her and thereafter he had made physical relation,

even thereafter, she refused to go with her father. Thus, it is proved from

evidence that, their relationship was consensual relationship and there is no

force or assault found involved in their relationship. Hence, offences of

kidnapping the prosecutrix to compel her for marriage, and commission of

rape, are also not made out against the appellant.

18. Consequently, the impugned judgment dated 17-3-2020 passed

by the learned trial Court is hereby set-aside. Appellant is acquitted from all

the offences.

19. It is directed that appellant be released from jail forthwith in this

case, if not required in any other case. It is further directed that in

compliance of Section 437-A of the Cr.P.C. he shall furnish a personal bond

of Rs. 25,000/- with one surety of the like amount to the satisfaction of trial

Court, for his appearance before the higher Court, if required. Said bail

bonds shall remain in force for a period of six months.

20. Record of the trial court be sent back forthwith along with a copy of

this judgment for compliance.

21. The appeal is allowed.

Sd/-

(N.K. Chandravanshi) Judge

Pathak