Chattisgarh High Court
Krishna Kumar Yadav vs State Of Chhattisgarh on 16 January, 2025
1
2024:CGHC:33481
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1036 of 2021
Krishna Kumar Yadav S/o Laxman Yadav, Aged About 37 Years
R/o Village Jaroundha, P.S. Takhatpur, District Bilaspur
Chhattisgarh.
... Appellant
versus
State of Chhattisgarh Through The PS- Takhatpur, District
Bilaspur Chhattisgarh.
---- Respondent
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For Appellant : Mr. Mirza Hafiz Baig, Advocate
For Respondent-State : Mr. Pranjal Shukla, PL.
--------------------------------------------------------------------------------------
Hon'ble Shri Arvind Kumar Verma, Judge
Judgment on Board
16.01.2025.
1. This criminal appeal has been preferred by the appellant against
the judgment dated 13.08.2021, passed in Special Session Trial
No.26/2018 by learned Addl. Session Judge/First FTSC
(POCSO), Bilaspur, (CG), whereby appellant has been convicted
as under :-
Conviction Sentence
U/s 454 of the Rigorous imprisonment
Indian Penal Code for 03 years & fine of
(IPC) amount Rs.250/-, in
default of payment of fine
06 months additional RI.
U/s 376 (2) of IPC RI for 10 years & fine of
amount Rs.500/-, in
default of payment of fine
three months additional
RI.
Both sentence run concurrently
2. The prosecution case, in brief, is this that on 28.08.2017, present
appellant forcefully entered into the house of victim/prosecutrix
and thereafter committed forceful sexual intercourse with her and
also threatened her not to disclose the incident to anyone. Based
upon report, FIR was registered against the appellant for offence
under Sections 450, 376 of IPC and Section 4 of the POCSO
Act.
3. On completion of investigation, challan/charge sheet was filed
against the appellant for offence under Sections 450, 376 of IPC
and Section 4 of the POCSO Act.
4. The prosecution in order to prove its case examined as many as
14 witnesses, whereas the appellant-accused in support of his
defence not examined any witness. Statement of appellant
(accused) was recorded under Section 313 of CrPC in which he
denied all incriminating evidence appearing against him,
pleaded innocence and false implication.
5. After hearing learned counsel for the parties and appreciating the
evidence/material available on record, the trial Court vide
impugned judgment convicted and sentenced the
accused/appellants 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 the prosecutrix (PW-3) in her cross-examination
stated that she had lodged the false FIR due to fear and
pressure. There was love affair between the appellant and
prosecutrix. As per case of prosecution, prosecutrix was minor
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. Further, no ossification test of the
prosecutrix has been conducted to ascertain her age. Learned
counsel further submits that there are many contradictions and
omissions in the statement of the prosecutrix, which was not
considered properly by learned trial court. As such, the
impugned judgment of conviction recorded and sentence
awarded deserves to be set-aside.
Alternatively, it is argued that if the Court finds that
alleged offence/crime has been committed by the appellant, then
considering the fact that appellant is in jail since 15.07.2021 and
thereby already served more than three years of jail sentence,
he is not having any previous criminal incident, the sentence
awarded to the appellant be reduced to the period already
undergone by them.
7. On the other hand, learned counsel for the State supporting the
impugned judgment and submits that the 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. Prosecutrix was subjected to forcible sexual
intercourse by appellant. Being so, the 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-3/prosecutrix and her mother & father (PW-1 & PW-
4) in their deposition have stated that on the date of alleged
incident, prosecutrix was minor aged about 15 years, but did not
produce the birth certificate or any other relevant document
regarding DOB of prosecutrix. The prosecution has heavily relied
upon the entry made in Dakhil-Kharij register of Government
Primary School, Jaraunda, Block Takhatpur, regarding date of
birth of prosecutrix. Though in the said register, her date of birth
is recorded as 16.10.2001, but PW-5/Headmaster of said school
has admitted in his cross-examination that he is not aware that
on what basis said entry was made in Dakhil Kharij Register as
he was not the author who made the said entry. Prosecution has
also failed to explain that on what basis said entry was made 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 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.
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 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: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 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: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
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
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
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 the case of P. Yuvaprakash versus State Rep. By Inspector
of Police, AIR 2023 SC 3525, the Hon'ble Supreme Court
observed in para 13 as under:
"13. It is evident from conjoint reading of the
above provisions that wherever the dispute
with respect to the age of a person arises in
the context of her or him being a victim
under the POCSO Act, the courts have to
take recourse to the steps indicated in
Section 94 of the JJ Act. The three
documents in order of which the Juvenile
Justice Act requires consideration is that the
concerned court has to determine the age
by considering the following documents:
(i) the date of birth certificate
from the school, or the
matriculation or equivalent
certificate from the concerned
examination Board, if available;
and in the absence thereof;
(ii) the birth certificate given by
a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of
(i) and (ii) above, age shall be
determined by an ossification
test or any other latest medical
age determination test
conducted on the orders of the
Committee or the Board".
14. 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.
15. Now coming to the point whether the appellant has been falsely
implicated in this case for offence under 376(2) & 454 of IPC ?
Prosecutrix in her Court statement has stated that on the date of
alleged incident, she was alone in her house as her parents
(mother and father) had gone to work. At that time,
appellant/accused came to her house at about 10 am in the
morning and committed forceful sexual intercourse with her and
also threatened not to tell anyone about the incident or else he
would kill her. Due to intercourse, she became pregnant. Version
of the prosecutrix is supported by her mother and father (PW-1 &
PW-4) in their deposition. Thus, learned trial Court has rightly
convicted the appellant for the aforesaid offence.
16. As regards the quantum of sentence, considering that incident in
question took place as back as in the year 2017 and now almost
more than 07 years have passed. During these years, appellant
must have suffered tremendous mental trauma and anguish of
trial, he has already undergone more than 03 years of
substantive sentence imposed by trial Court, he has no any
previous criminal incident, he is aged about 37 years and having
family behind him, this Court is of the opinion that sentence
imposed by trial Court upon the appellant for offence under
Section 376(2) of IPC (RI for 10 years) appears to be on higher
side. So keeping in view all the circumstances, mentioned
above, ends of justice will be served if the sentence imposed
upon appellants is reduced from RI 10 years to RI 07 years.
17. In the result, appeal is allowed in part. The appellant is acquitted
of the charge under Section 4 of the POCSO Act. While
maintaining the conviction of appellant under Sections 454 &
376(2) of the IPC, the sentence imposed upon him by trial Court
is reduced from RI for 10 years to RI 07 years. However,
sentence of fine imposed by the trial Court is hereby maintained.
18. The record of the trial Court along with copy of this judgment be
sent back immediately to the trial Court concerned for
compliance and necessary action.
Sd/-
(Arvind Kumar Verma)
JUDGE
J/-
