Chattisgarh High Court
Bramhadev Parde vs State Of Chhattisgarh on 1 July, 2024
Neutral Citation
2024:CGHC:23048
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1553 of 2018
Bramhadev Parde S/o Shri Manohar Parde Aged About 27
Years R/o Village Nagbel, Police Station Shobha, District
Gariyaband Chhattisgarh, District : Gariyabandh, Chhattisgarh.
---- Appellant
Versus
State Of Chhattisgarh Through The Station House Officer, Police
Chowki Dudhwa, Police Station Narharpur District North Bastar
Kanker Chhattisgarh.
---- Respondent
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For the Appellant : Mr. DN Prajapati, Advocate.
For the State/Respondent : Ms. Mandawi Bhardwaj, PL.
--------------------------------------------------------------------------------------
Hon'ble Shri Arvind Kumar Verma, Judge
Order on Board
01.07.2024
1. This criminal appeal has been preferred by the
appellant/accused against the judgment of conviction and order
of sentence dated 20.08.2018, passed in Special Criminal Case
(POCSO Act) No.59/2017 by which the learned Additional
Sessions Judge, Fast Track Court and Special Judge, North
Bastar Kanker, (CG), convicted the accused /appellant under
Sections 363, 366 & 506-II of Indian Penal Code (IPC) & Section
6 of the the Protection of Children from Sexual Offences Act,
2012 (POCSO Act) and sentenced him to undergo RI for 10
years with fine of Rs.5,000/-.
2. The prosecution case, in brief, is that on 08.09.2017 complainant
(PW-3/father of prosecutrix) lodged missing report to the
concerned Police Station mentioning therein that on 07.09.2017
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morning at about 09:30 am, her daughter (PW-1) went to the
School, but not return back to the home. He was under suspicion
that some one has abducted his minor daughter. Based upon the
report, initially the Police registered FIR for offence under
Section 363 of IPC against unknown person. During
investigation, on 09.09.2017, prosecutrix was recovered from the
house of appellant at village -Nagbel, PS -Shobha, District
Gariyaband. Her statement was recorded under Section 161 of
Cr.P.C and, based upon which, accused was arrested.
3. On completion of investigation, challan/charge sheet was filed
against the appellant before the trial Court and, accordingly,
charges were framed against him.
4. Prosecution in order to prove its case examined total 15
witnesses. Statement of appellant (accused) was also recorded
under Section 313 of CrPC in which he denied all incriminating
evidence appearing against him, pleaded innocence and false
implication. However, no evidence was adduced by him in his
defence.
5. After hearing counsel for the parties and appreciating evidence
available on record, trial Court vide impugned judgment
convicted and sentenced the accused/appellant in the manner as
described in Para-1 of this judgment. Hence this appeal.
6. Learned counsel for the appellant submits that the impugned
judgment is per se illegal and contrary to the evidence available
on record. As per case of prosecution, age of the prosecutrix
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was about 15 years & 06 months at the time of alleged incident,
but no authentic documentary proof was filed in order to show
that the prosecutrix was a minor girl on the alleged date. The
date of birth of prosecutrix mentioned as 13.04.2002 in Dhakhil
Kharij Panji (Ex.P-21/C) cannot be said to be conclusive as the
author of the said document could not be examined. PW-3/father
of prosecutrix in his deposition has failed to explain that on what
basis said entry was made in Dakhil Kharij Panji. Further, no
ossification test of prosecutrix has been conducted to ascertain
her age. Learned counsel further submits that trial Court
convicted the appellant relied upon the statement of
PW-1/prosecutrix, but her statement is not reliable as there are
many contradictions, omissions and development in her
statement, which was not considered properly by trial court.
From the statement of the prosecutrix it reflects that she is not a
reliable witness and appears to be a consenting party to the act
of appellant. Trial Court also ignored the fact that nothing has
been found in the medical report of prosecutrix though there is
allegation that appellant has established forceful physical
relationship with her on many occasion. In fact, there was affair
between appellant and prosecutrix and, therefore, prosecutrix
willingly went with him to his village and had physical relation
with him of her own free will. Medical evidence also shows that
there was no sign of forcible sexual intercourse on the body of
the prosecutrix. The prosecution has failed to prove its case
beyond all reasonable doubt against the appellant and,
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therefore, appellant deserves to be acquitted of all the charges.
7. On the other hand, learned State Counsel supporting the
impugned judgment would submits that prosecutrix was a minor
girl on the date of incident and this fact has been duly proved by
the prosecution by adducing oral and documentary evidence. As
such, even if there was affair between the appellant and
prosecutrix, the act committed by appellant makes him liable for
conviction under Sections 363, 366 of IPC and Section 6 of
POSCO. Being so, impugned judgment is strictly in accordance
with law and the present appeal is liable to be dismissed.
8. Heard learned counsel for the respective parties and perused the
recorded placed on record.
9. Now this Court has to see whether the prosecution has been
able to prove that on the date of incident prosecutrix was minor.
Though PW-1/prosecutrix and her father (PW-3) in their
deposition have stated that she was born on 13.04.2002 and
studying in Government Primary School, Dudhwa, but except
mark-sheet of Class VII, they failed to produce the birth
certificate or any other document regarding DOB of prosecutrix.
The prosecution has heavily relied upon the entry
made in Dakhil-Kharij Panji of Govt. Primary School, Nayapara,
Dudhwa, Block -Narharpur, regarding date of birth of prosecutrix.
Though in the said register, her date of birth is recorded as
13.04.2002, but PW-9/Headmaster of said school in his cross-
examination has stated that he is unable to explain that on what
basis said entry was made in Dakhil-Kharij Panji as at the time of
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admission of prosecutrix, he was not posted in the said School.
Prosecution has not examined the author of dakhil-kharij panji
and also failed to explain that on what basis DOB of prosecutrix
was recorded in dakhil-kharij panji. Further, no ossification test of
the prosecutrix has been conducted to ascertain her age.
10. The Hon'ble Apex Court in the matter of Alamelu and another
Vs. State, represented by Inspector of Police, (2011) 2 SCC
385 observed in paras 40 & 48 of its judgment 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.
48. 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
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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 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."
11. In the case of Rishipal Singh Solanki Vs. State of Uttar
Pradesh & others, (2022) 8 SCC 602, the Hon'ble Supreme
Court 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.
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XXXX XXXX XXX
33.3. 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
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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."
12. The Supreme Court in the matter of Manak Chand alias Mani
vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated
the law laid down by it in the matter of Birad Mal Singhvi vs.
Anand Purohit, 1988 (Supl.) SCC 604 and observed that the
date of birth in the register of the school would not have any
evidentiary value without the testimony of the person making the
entry or the person who gave the date of birth. It was further
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reiterated that if the date of birth is disclosed by the parents, it
would have some evidentiary value but in absence the same
cannot be relied upon. For sake of brevity para No. 14 & 15 of
the judgment are reproduced hereunder:-
"14 This Court in Birad Mal Singhvi v. Anand
Purohit (1988) Supp SCC 604 had observed that
the date of birth in the register of a school would not
have any evidentiary value without the testimony of
the person making the entry or the person who
gave the date of birth.
"14.... The date of birth mentioned in
the scholar's register has no
evidentiary value unless the person
who made the entry or who gave the
date of birth is examined. The entry
contained in the admission form or in
the scholar's register must be shown to
be made on the basis of information
given by the parents or a person having
special knowledge about the date of
birth of the person concerned. If the
entry in the scholar's register regarding
date of birth is made on the basis of
information given by parents, the entry
would have evidentiary value but if it is
given by a stranger or by someone else
who had no special means of
knowledge of the date of birth such an
entry will have no evidentiary value."
15. In our opinion, the proof submitted by the
prosecution with regard to the age of the
prosecutrix in the form of the school register was
not sufficient to arrive at a finding that the
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prosecutrix was less than sixteen years of age,
especially when there were contradictory evidences
before the Trial Court as to the age of the
prosecutrix. It was neither safe nor fair to convict
the accused, particularly when the age of the
prosecutrix was such a crucial factor in the case."
13. In light of aforesaid decisions of the Hon'ble Supreme Court, this
Court is of the view that in the present case, there is no such
clinching and legally admissible evidence brought on record by
the prosecution to prove the fact that the prosecutrix was minor
on the date of incident, yet the learned trial Court has recorded in
the impugned judgment that she was minor. Hence, this Court
set aside the finding so recorded by the learned trial Court and
hold that the prosecution has not been able to prove successfully
that on the date of incident she was minor.
14. Now coming to the point whether the appellant has committed
rape with the prosecutrix. Prosecutrix (PW-1) in her deposition
stated that she was studying in Class -IX in the Govt. Primary
School, Nayapara, Dudhwa. On 07.09.2017 when she was in the
School, at lunch time appellant/accused came outside the school
and asked her to meet outside. When she came outside the
school, appellant took her to bus-stand and thereafter to his
house at village-Nakbel through bus. Where, appellant confined
her for five days and during that time established physical
relationship with her for two days, whereas, three days she slept
at night with his mother. However, she admitted in her cross-
examination that she known to the accused since the year 2015,
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she liked and wanted to marry with him. When parents of
accused seen her scolded the accused and told him to drop her
to his home, however, she denied to return to his home. She
went with accused and his brother-in-law to Raigarh for traveling.
At village -Nakbel, meeting was held in which she stated that
she wants to live with the accused and denied to return to his
village. PW-6/Dr. Seema Sing & PW-8/Dr.S. Kumethi (medical
officers) who examined the prosecutrix and did not find any
external or internal injury on her body. Further PW-6 in her
deposition does not state anything regarding forceful sexual
intercourse with the prosecutrix.
Thus, looking to the evidence of prosecutrix, it is
clear that on 07.09.2017 the prosecutrix had gone with accused
with her own free will and stayed five days with her at his house.
Further looking to the contradiction and exaggeration in the
evidence of the prosecutrix, her conduct during the alleged
incident and subsequent thereto coupled with the medical
evidence which also lends no support to the prosecution case, it
is clear that the prosecutrix was a consenting party in this case
to the act of the accused person.
It is well settled law that in the cases of sexual
assault, conviction can be maintained even on the basis of sole
testimony of the prosecutrix. However, in this case on close
scrutiny of the evidence makes it clear that the prosecutrix was a
consenting party to the act of the appellant as she went with the
appellant and stayed five days with him of her own free will.
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15. Since this Court has already observed that the prosecution has
failed to prove that on the date of incident she was minor, in the
given set of facts and circumstances of the case, no offence of
rape or abduction is made out against the appellant.
16. In the result, appeal is allowed and impugned judgment dated
20.08.2018 (Annexure P-1) is hereby set aside. Appellant is
acquitted of charges under Sections 363, 366 & 506-II of IPC
and Section 6 of POCSO Act. He is reported to be in jail,
therefore, he be set free forthwith if not required in any other
case.
17. Keeping in view the provisions of Section 437-A of CrPC,
appellant is directed to furnish a personal bond in terms of form
No.45 prescribed in the Code of Criminal Procedure of sum of
Rs.25,000/- with one reliable surety 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.
18. Record of trial Court alongwith copy of this judgment be sent
back immediately to trial Court concerned for compliance and
necessary action.
Sd/-
(Arvind Kumar Verma)
JUDGE
J/-
