Jharkhand High Court

Balram Mahto vs The State Of Jharkhand on 11 November, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Navneet Kumar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (DB) No. 1429 of 2023
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Balram Mahto                     ...   ...      Appellant
                            Versus
The State of Jharkhand               ...    ... Respondent
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellant : Mrs. Anjali Kumari Amicus Curiae For the Respondent : Mrs. Priya Shrestha, Spl.PP

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th Order No. 10 : Dated 11 November, 2024

I.A. No. 9483 of 2024

1. The instant interlocutory application has been filed on

behalf of sole appellant under Section 430 (1) of BNSS, 2023

for suspension of sentence dated 28.02.2023 passed by the

learned Additional Judicial Commissioner, IV-cum-Special

Judge, POCSO, Ranchi in POCSO Case No. 30 of 2019,

whereby and whereunder, the appellant has been convicted

for the offence under Section 376(2)(n) of the Indian Penal

Code and under Section 4 of the POCSO Act and has been

sentenced to undergo Rigorous Imprisonment for 10 years

with a fine of Rs. 15,000/- for the offence under Section

376(2)(n) IPC and in default of payment of fine further

directed to undergo SI for Six months.

2. Mrs. Anjali Kumari, learned counsel who is representing

the appellant has been appointed as Amicus Curiae vide

order dated 08.08.2024 passed by the Co-ordinate Bench of

this Court.

3. Learned counsel for the appellant has submitted that it

is a case where the prosecution has miserably failed to

establish the charge of offence said to have committed under

Section 376(1)(n) of the Indian Penal Code and under Section

4 of the POCSO Act, the reason for such submission is that

the age of the victim has not been conclusively said to be

proved in view of the fact that the prosecution has relied

upon Exhibit 4 i.e., the certificate issued by the Principal of

the concerned school from where the victim has said studied

up to Class 8 but the said principal has not been examined

and as such the document which has been marked as Exhibit

4 has not been proved by the principal.

4. It has been contended by referring to the testimony of

Investigating Officer, who has been examined as P.W. 4 that

she herself has admitted in her cross-examination that she

has never scrutinize the validity of the said certificate and the

principal of the school has not put his signature upon the

said certificate before her.

5. Submission has also been made that the serious

objection has been made with respect to the age of the victim

by putting specific question in the cross-examination but the

learned trial court while dealing with exhibit 4 has not taken

into consideration the cross examination of the investigating

officer.

6. The contention has also been made, based upon the

aforesaid argument, that when the age of the victim itself has

not been conclusively proved, which has been said to be 17

and ½ years and considering the non-conclusive proof of the

age, the prosecution version if will be taken into

consideration the same will be said to be the consensual

physical relationship between the parties i.e., between the

victim and the appellant. As such, neither the ingredient of

Section 376(2)(n) of the Indian Penal Code nor the ingredient

of Section 4 of POCSO Act is attracted.

7. Learned counsel for the appellant, based upon the

aforesaid ground has submitted that the appellant is liable to

be released on bail by suspending the sentence.

8. Mrs. Priya Shrestha, learned Spl.P.P. appearing for the

respondent-State has vehemently opposed the prayer for

suspension of sentence.

9. It has been contended by her that the certificate which

has been marked as Exhibit 4 has been proved by the

investigating officer and as such it is incorrect on the part of

the appellant to take the ground that the age of the victim

has not been conclusively proved by the prosecution.

10. Further contention has been raised that since the

prosecution has been able to prove the age of the victim to be

17 and ½ years since the victim is below the age of 18 years,

therefore, the consent will have no meaning. As such the

judgment of conviction and order of sentence cannot be said

to suffer from an error. Therefore, it is not a fit case for

suspension of sentence.

11. We have heard learned counsel for the parties and

gone across the finding recorded by the learned trial Court in

the impugned judgment as also the testimony of the

witnesses as available in the Lower Court Records, which has

been called for by the Co-ordinate Bench of this Court vide

order dated 10.09.2024.

12. This Court, in order to appreciate the argument

advanced on behalf of the appellant particularly with respect

to the ingredient said to have attracted for the offence under

Section 376 (2)(n) IPC or Section 4 of the POCSO Act, has

considered the objection raised on behalf of the appellant

with respect to the age of the victim.

13. We have gone through the testimony of the investigating

officer who has been examined as P.W 4 and found that the

certificate said to be issued by the school under the seal and

signature of the principle from where the victim has studied

up-to class 8 standard, which is the basis of proving the age

of the victim to be 17 and ½ years.

14. We have considered the reliability of the age of the

victim to be 17 and ½ years as considered by the learned trial

Court on the basis of certificate said to be issued by the

principle of the said school.

15. We have considered the testimony of the investigating

officer wherefrom it is evident that the certificate which has

been marked as Ext. 4 has been exhibited by the

investigating officer.

16. We, in this context, has considered provision of Rule 94

of the Juvenile Justice Act, which has been dealt with by

Hon'ble Apex Court in the case of P. Yuvaprakash vs. State

Rep. by Inspector of Police, reported in 2023 SCC OnLine

SC 846, particularly paragraph 14 thereof laying down the

procedure to come to the conclusive finding with respect to

the reliability of the age. Such consideration has been given

by the Hon'ble Apex Court in view of the rigorous nature of

the penal offence i.e,, the POCSO Act. For ready reference,

paragraph 14 of the judgment is quoted as under:

"14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to

establish what it alleges; therefore, the prosecution could not have been fallen back upon a document 5 which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence."

17. Admittedly, herein this Court has not found anywhere in

document that the author of the said school certificate which

has been issued by the principal has ever been called for

examination/cross-examination and for exhibiting the said

document.

18. But fact remains, as per the legal position, that author

of the said school certificate is required to be examined for

the purpose of proving the hand script of the said certificate.

19. Another thing is also to be considered which is available

in the testimony of the investigating officer that she has not

verified the seal and signature of the principal of the school

on the said certificate.