Sikkim High Court
Xxx vs State Of Sikkim on 25 September, 2024
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appeal Jurisdiction)
DIVISION BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. Appeal No. 05 of 2022
xxxxx (name redacted)
A/P State Central Prison,
Rongyek, East Sikkim.
..... Appellant
versus
State of Sikkim
..... Respondent
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Appeal under Section 374(2) of the Code of Criminal
Procedure, 1973.
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Appearance:
Mr. Gulshan Lama, Advocate (Legal Aid Counsel) for
the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor and
Mr. Sujan Sunwar, Assistant Public Prosecutor, for the
Respondent.
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Date of Hearing : 14.08.2024
Date of Judgment : 25.09.2024
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JUDGMENT
Bhaskar Raj Pradhan, J.
1. The appellant was convicted for commission of the
offence under Section 375 of the Indian Penal Code, 1860
(IPC) and sentenced under Section 376 thereof for
commission of rape on his own daughter (victim).
xxxx (name redacted) vs. State of Sikkim
2. The appellant is aggrieved by the conviction and
sentence and assails the impugned judgment rendered by
the learned Special Judge, Protection of Children from
Sexual Offences Act, 2012 (POCSO Act) Mangan, North
Sikkim (the learned Special Judge) in Sessions Trial POCSO
Act Case No. 07 of 2021.
The First Information Report (FIR)
3. The First Information Report (FIR) dated
27.06.2021 was lodged by the victim's aunt (P.W.1). It was
stated that on 27.06.2021 the victim was overheard telling
her cousin (P.W.6) that she was raped by her father (the
appellant) multiple times at night at their residence since
April 2021. In the FIR, P.W.1 also stated that the victim had
bled due to the alleged act and when she cried, the appellant
had covered her mouth and told her not to tell anyone
threatening to kill her if she did.
The charge-sheet
4. The prosecution filed the charge-sheet alleging
commission of rape by the appellant on the minor victim
who was five years old.
The charge
5. The learned Special Judge framed charges against
the appellant for offences under Section 5 (l), 5(m) and 5(n)
xxxx (name redacted) vs. State of Sikkim
of the POCSO Act punishable under Section 6 thereof. The
learned Special Judge also framed charge under Section 375
for rape punishable under Section 376 IPC read with Section
506 IPC for threatening to kill her.
The Trial
6. During the trial, the prosecution examined 17
witnesses. The appellant's examination under Section 313
Cr.P.C. was conducted on 24.11.2021. The appellant said
that he did not have cordial relationship with P.W.3 and
P.W.4 as they disliked him. He also stated that he had come
to know about the extramarital affair of his wife from P.W.3
and P.W.4 which fact was disclosed to him only after she
had eloped. He stated that he had not committed the
offence.
The appellant's case
7. This is an appeal filed by the appellant. The State of
Sikkim, as in many other cases, chooses not to prefer an
appeal.
8. The learned Counsel for the appellant submits that
the prosecution has not been able to establish their case;
that the victim's deposition is inconsistent and tutoring
cannot be ruled out; that the medical evidence does not
support the case of rape and although the victim was
xxxx (name redacted) vs. State of Sikkim
examined soon after the alleged incident there was no active
bleeding or swelling; and that the depositions of the
prosecution witnesses are inconsistent and contradictory
raising serious doubts on their case.
The prosecutions submission
9. Per contra the learned Additional Public Prosecutor
for the State respondent submits that the deposition of the
victim, although a child of 5 years, was consistent with her
statement recorded under Section 164 Cr.P.C.; that the
forensic examination of her wearing apparel seized during
investigation confirmed that there was blood on it; and that
the deposition of the victim is corroborated by other
prosecution witnesses and therefore the judgment of the
learned Special Judge was correct and may not be interfered
with.
Consideration
10. We therefore, venture to examine the evidence laid
down by the prosecution to establish the charges framed
against the appellant.
11. The victim deposed that she was a student studying
in LKG. She identified the appellant as her father. She
deposed that the appellant had committed penetrative
sexual assault on her after undressing himself and her. She
xxxx (name redacted) vs. State of Sikkim
further stated that the appellant had committed the offence
twice. She deposed that she was taken to the Hospital by
her aunt where the doctor examined her private part. She
also identified her wearing apparel - a frock (M.O.I).
However, she did not depose about the threat given by the
appellant.
12. The victim confirmed that she had also made a
statement which was recorded under Section 164 Cr.P.C
and identified her thumb impression therein. In her
statement the victim had stated to the learned Magistrate on
29.06.2021 that two days ago the appellant, in a drunken
state, had inserted his finger in her "private part".
Consequently when she bled he wiped her blood with a cloth
and paper. She also stated that the appellant had cupped
her mouth, threatened her not to tell anyone about it and
gave her Rs.10/-. She had stated that she had disclosed
about it to P.W.6.
13. The learned Counsel for the appellant sought to
make an issue of contradiction between the victim's
statement and her deposition. It was argued that although
the victim had stated that the appellant had inserted his
finger in her "private part" in the statement recorded under
Section 164 Cr.P.C., during her deposition, she had stated
that the appellant had committed "penetrative sexual
xxxx (name redacted) vs. State of Sikkim
assault". The defence failed to seek any clarification from the
victim during her cross-examination. "Penetrative sexual
assault" as defined in Section 3 under the POCSO Act is
wide enough to include penetration by different means. The
victim of tender age may not have used the words
"penetrative sexual assault". It is obvious that the victim's
deposition in court was translated by the learned Special
Judge. We are of the view that this cannot be termed as
major contradiction to disturb the prosecution case.
14. During her cross-examination the victim on the
suggestion of the defence stated:
"It is true that I was made to depose against my father by
my Ani and Rxxxxx in this case. It is true that my father
used to love me. It is not a fact that whatever statement I
had made against my father in examination-in-chief are not
true and correct".
15. The learned Counsel for the appellant submitted
that due to this admission as quoted above it would be clear
that the victim was tutored. P.W.1 was the victim's aunt.
The defence did not even suggest that she had tutored the
victim. The cross-examination of the victim also does not
reflect that the defence even made an attempt to suggest
that her deposition about penetrative sexual assault
committed by the appellant was untrue.
16. P.W.6 is a child witness who is also named in the
FIR as the victim's cousin to whom the victim had disclosed
xxxx (name redacted) vs. State of Sikkim
about the incident. P.W.6 deposed that the victim had told
her that the appellant, after undressing himself and the
victim, committed penetrative sexual assault which caused
bleeding and pain on her private part. She further deposed
that the victim told her that she had cried for help but her
mouth was cupped by the appellant. She reiterated about
the victim telling her about the commission of penetrative
sexual assault by her father during her cross-examination
and denied the suggestion that she was tutored. P.W.6
corroborated the victim's deposition.
17. P.W.7, yet another child witness studying in Class
V, referred to the appellant as her brother-in-law. She also
deposed about the victim disclosing to her about the
appellant undressing himself and the victim and then
committing penetrative sexual assault and threatening her
not to divulge to anyone. During cross-examination, she
admitted that although she had spent three nights with the
victim she never disclosed about the offence during that
period. P.W.7 also corroborated the victim's statement.
18. P.W.4 deposed that she had overheard the victim
disclose to P.W.6 about the commission of penetrative
sexual assault upon her after which she had inquired from
the victim and confirmed the same. Thereafter, she informed
about the incident to her sister-in-law (P.W.1). She also
xxxx (name redacted) vs. State of Sikkim
deposed that she and P.W.5 had taken the victim for medical
examination. The medical report (exhibit-17) of the victim
corroborates the fact that P.W.4 had taken the victim for
medical examination.
19. The defence did not suggest either to P.W.4 or to
P.W.3 that they did not enjoy a cordial relationship with the
appellant since they had not disclosed about the
extramarital affair of his wife which fact was disclosed to
him only after she had eloped.
20. P.W.1 in the FIR lodged by her had stated that she
had overheard the victim disclosing to P.W.6. However, when
in the witness box, P.W.1 stated that P.W.4 had told her
about it and clarified the actual fact. The cross-examination
by the defence did not question either P.W.1 or P.W.4 on the
contradiction between the FIR and the deposition of P.W.6.
P.W.1, however, confirmed that the FIR had been lodged by
her.
21. According to P.W.5, she too overheard the victim
disclose to P.W.6 about the appellant undressing himself
and the victim and climbing on top of her. On further
inquiry, according to P.W.5, the victim had also disclosed
about the appellant threatening her with dire consequences
if she disclosed about the incident to any person. She
confirmed having taken the victim for medical examination
xxxx (name redacted) vs. State of Sikkim
along with P.W.4. P.W.5 also corroborated the deposition of
the victim.
22. The victim was examined by P.W.12 - the Medical
Officer of the District Hospital, on 27.06.2021. Her medical
examination indicates that her hymen was "ruptured".
Further, P.W.12 did not notice any bleeding from her private
part or any signs of injury on her body. The learned counsel
for the appellant stressed on this medical report (exhibit-17)
to submit that the version of the victim was untrue.
23. The victim was examined on 27.06.2021. The victim
during her deposition could not state exactly when the
appellant had committed penetrative sexual assault upon
her but she was certain that the appellant had committed
the offence twice. The victim is said to be of tender age. It is
difficult to expect clarity of date, time and place from a
victim of that age who had undergone the trauma of being
sexually abused by her own father. There was no reason for
the victim to make false allegation against her own father
who she loved if the offence had not been committed by him.
The evidence does not even suggest so. It is certain that the
appellant had committed penetrative sexual assault upon
the victim. Merely because the Medical Officer (P.W.12) did
not notice active bleeding or signs of injury on her body
would not completely destroy the prosecution case. The
xxxx (name redacted) vs. State of Sikkim
Medical Officer (P.W.12) had noticed that the victim's hymen
was "ruptured". Further, the Investigating Officer (P.W.17)
had also seized the wearing apparel of the victim (MO-I), i.e.,
a frock, on 28.06.2021 which was kept under the bed in the
appellant's house. The seizure memo (exhibit-3) was proved
by the Investigating Officer (P.W.17) as well as P.W.4 and
P.W.5 - the seizure witnesses. MO-I was then sent for
forensic examination and the Junior Scientific Officer of
Regional Forensic Science Laboratory (P.W.14) confirmed
that he had detected human blood in MO-I. The forensic
report (exhibit-21) was proved by him.
24. The deposition of the victim is also corroborated by
MO-I - her frock, which had blood stains on it and her
medical examination report (exhibit-17) which confirmed
that her hymen had "ruptured".
25. P.W.16 was the Counsellor at the District Child
Protection Unit before whom on 27.06.2021, P.W.4 had
brought the victim for counselling. P.W.16 also confirmed
that the victim had disclosed to her about the appellant
having committed penetrative sexual assault on her more
than one occasion. The defence did not choose to contradict
P.W.16's statement in examination-in-chief that the victim
had during the counselling session disclosed to her about
xxxx (name redacted) vs. State of Sikkim
the appellant having committed penetrative sexual assault
on the victim several times.
26. From the above evidence, the prosecution has been
able to prove the factum of commission of the alleged
offences at least on two occasions on the victim by the
appellant beyond reasonable doubt.
Appeal dismissed
27. Therefore, the appeal against the conviction and
sentence of the appellant under Section 375/376 IPC must
necessarily fail. The appeal filed by the appellant is
dismissed.
Exercise of suo motu power of revision
28. The learned Special Judge has, however, acquitted
the appellant for offences under Section 5(l), 5(m) and 5(n) of
the POCSO Act holding that the prosecution had failed to
prove certain documents relating to the victim's age
although the appellant has been convicted for offence of rape
under section 376 IPC. Even while doing so the learned
Special Judge has recorded an observation that on the
physical appearance of the victim she appears to be a minor.
We therefore, propose to revisit the prosecution evidence
regarding the victim's age.
29. The State respondent has failed to exercise the
prerogative granted by the legislature under the provisions
xxxx (name redacted) vs. State of Sikkim
of Section 377 Cr.P.C. to file an appeal. This was their duty
to protect the interest of the society and the victim. The
failure of the State to file an appeal cannot deter us in doing
substantial justice. The power of the Appellate Court to
enhance the sentence is available under Section 386 (c) of
the Cr.P.C. We propose to exercise that power although the
State has failed to file an appeal for enhancement of
sentence in the facts of this case as we are of the considered
view that the judgment of conviction dated 26.11.2021 and
sentence dated 27.11.2021, are grossly erroneous both on
facts and in law. The learned Special Judge has failed to
consider vital evidence placed by the prosecution. The
learned Special Judge has also failed to consider the
relevant provisions of the POCSO Act and the IPC and
adequately sentence the appellant. This has led to grave
injustice to the victim and the society. The findings as well
as the sentence passed by the learned Special Judge are
incorrect, illegal and improper. We are of the opinion that
this is an exceptional case where this Court's power to
enhance the sentence suo motu should be exercised. We
therefore, exercise our suo motu powers of revision in terms
of the judgment of the Supreme Court in Nadir Khan vs. The
State (Delhi Administration)1, Eknath Shankarrao Mukkawr vs
(1975) 2 SCC 406
xxxx (name redacted) vs. State of Sikkim
State of Maharashtra2, Sahab Singh & Ors. vs. State of
Haryana3, Prithipal Singh vs. State of Punjab4, Kumar Ghimirey
vs. State of Sikkim5, Prakash Jain & Ors. vs. The State of
Karnataka6 and Radheyshyam & Anr. vs. State of Rajasthan7.
30. In Jayaram Vithoba vs. State of Bombay8, the
Supreme Court held that suo motu powers of enhancement
under revisional jurisdiction can be exercised only after
giving notice/opportunity of hearing to the accused.
31. In Prakash Jain (supra), the Supreme Court opined
that any notice for enhancement must indicate why the
Court wants to enhance the sentence and it must give
reasonable time to the accused to answer the notice. It held
that such notice cannot be an illusionary notice.
32. We, therefore, propose to indicate why this Court
wants to enhance the sentence and give reasonable time to
the convict to answer the same. We are of the view that the
learned Special Judge failed to determine the age of the
victim correctly although there was overwhelming evidence
led by the prosecution and thereby erroneously acquitted
him of the charges under Section 5(l), 5(m) and 5(n) of the
(1977) 3SCC 25
(1990) 2 SCC 385
(2012) 1 SCC 10
(2019) 6 SCC 166
Order dated 3rd July 2019 in Criminal Appeal No.956 of 2019
2022 LiveLaw (SC) 687
AIR 1956 SC 146
xxxx (name redacted) vs. State of Sikkim
POCSO Act. We are also of the view that the learned Special
Judge having framed charges under Section 5(l), 5(m) and
5(n) of the POCSO Act, ought to have framed the
corresponding charges under section 376(f), 376(n) and 376
AB of the IPC as well. However, the learned Special Judge
framed a charge under section 376 IPC only.
Determination of the age of the victim
33. When a victim who is said to be a minor child is
brought before the Court by the prosecution to establish a
case of alleged rape, the Special Court under the POCSO Act
jurisdiction is mandated to determine two vital facts. Firstly,
the fact that the victim is a child and secondly, whether the
offence as defined under the POCSO Act as alleged had been
committed upon the victim. When the victim is said to be a
minor child of the age of 5 years the determination of the age
of the victim cannot be a difficult task. The minor victim is
brought before the learned Special Judge during the course
of trial as a prosecution witness. The learned Special Judge
has numerous occasions to examine her physical
appearance and interact with the victim. If, therefore, at the
end of the trial, if the learned Special Judge concludes that
the age of such a victim, who is but a child of 5 years old,
has not been established by the prosecution during the trial,
it is certain that the trial conducted by the learned Special
xxxx (name redacted) vs. State of Sikkim
Judge has failed the victim for whom the POCSO Act has
established the Special Court and appointed the Special
Judge.
34. This question has been repeatedly troubling the
Special Courts against which many appeals have been
preferred and the question arises yet again.
35. According to the learned Special Judge, the
prosecution produced P.W.9, P.W.10 and P.W.11 to prove
that the victim was a minor. On examination of the evidence
led by the prosecution, the learned Special Judge concluded
that the Live Birth Register of STNM Hospital (exhibit-14),
the School Admission Register (exhibit-9) and the
immunization record (exhibit-12) could not be proved. The
learned Special Judge on examination of the victim in the
witness box held that it appears that she is a minor.
However, as the prosecution had failed to produce any
admissible evidence to prove the same, the learned Special
Judge concluded that the prosecution could not establish
the victim's minority. However, the learned Special Judge
was convinced that the prosecution had been able to
establish rape and convicted and sentenced the appellant
under section 375/376 IPC.
36. The Supreme Court has held that the parents or
near relations having special knowledge are the best persons
xxxx (name redacted) vs. State of Sikkim
to depose about the date of birth of a person. In that context
it is important to examine the depositions of P.W.1 - the
victim's aunt, P.W.3 - the victim's grandfather and P.W.4 -
the victim's relative.
37. We noticed that P.W.1, who was related to the
victim and had interacted with her after the incident,
examined her, accompanied her to the District Hospital and
thereafter lodged the FIR (exhibit-1), deposed that the age of
the victim was five years at the time of the incident. The
defence made no effort to contradict this fact during her
cross-examination.
38. P.W.3 - the grandfather of the victim, stated that
the victim was five years old. During his cross-examination,
the defence secured an admission that the victim did not
have a birth certificate and that he had stated about her age
on presumption. We are of the view that failure of the
parents to procure a birth certificate does not disprove that
the victim was a minor.
39. P.W.4, who was also related to the victim and an
important prosecution witness, also deposed that the victim
was five years old. She had overheard the victim disclose to
her friend about the sexual assault on her by her father. The
defence made no attempt to disprove this assertion about
the victim's age. In fact, as per the cross-examination, the
xxxx (name redacted) vs. State of Sikkim
victim was reading at Integrated Child Development Services
(ICDS) School indicating that the defence did not contest
that the victim was a minor.
40. The victim (P.W.2), who according to the learned
Special Judge, was not prevented from understanding the
question put to her and gave rational answers in spite of her
tender age, stated that she was studying in LKG although
she did not know her age. The defence made no attempt to
contest the fact that the victim was studying in LKG.
41. P.W.5 is yet another important witness who
overheard the disclosure made by the victim and inquired
about the incident from her. She had also accompanied the
victim to District Hospital for medical examination. P.W.5
also stated that the victim's age was five years. Although the
defence did not dispute this assertion, however, they
secured an admission that she had no personal knowledge
as to when the victim was born.
42. P.W.6 - a minor witness studying in Class V, stated
that the victim was her friend aged about five to six years.
The defence neither contested the fact that the victim was
her friend nor the fact that she was five-six years old.
43. P.W.7 - the other minor witness studying in Class
V, also deposed that the victim was five-six years. During
her cross-examination, on the suggestion of the defence, she
xxxx (name redacted) vs. State of Sikkim
fairly stated that she had deposed about the victim's age as
per information given by the appellant. The appellant did not
dispute this assertion of P.W.7.
44. Besides the above witnesses who deposed about the
age of the victim, our attention is also drawn to the
deposition of P.W.12 - the Medical Officer, who examined the
victim and P.W.16 - the District Child Protection Counsellor,
who also examined and counselled the victim.
45. P.W.12 - the Medical Officer examined the victim
and made her medical report (exhibit-17). The medical
report (exhibit-17) records the age of the victim as five years
at the time of the examination. The suggestion of the defence
during the cross-examination of P.W.12 that the victim was
not forwarded to a paediatrician for her medical examination
is also suggestive of the admission that the victim was in
fact a minor.
46. P.W.16 posted at the District Child Protection Unit
as Counsellor examined and counselled the victim after the
assault by the appellant. P.W.16 also confirmed that the age
of the victim was five years. During her cross-examination, it
was suggested by the defence that she had mentioned about
the age of the victim in her counselling report (exhibit-26) as
per the information given by her guardian - P.W.4. There is
xxxx (name redacted) vs. State of Sikkim
no suggestion by the defence that the victim was not a
minor.
47. We notice that the School Admission Register
(exhibit-9) was exhibited by P.W.9 - the Principal of the
School, without any objection from the defence; that P.W.9
deposed that the victim was admitted on 24.01.2019 at the
Nursery Level; and that P.W.9 also deposed that the entry
made therein was as per the verbal information of the
victim's mother. We notice that the immunization records of
the victim (exhibit-12) was exhibited by P.W.10 - the
In-Charge of ICDS without any objection; and that P.W.10
had deposed that the information about the date of birth of
the victim was given by her mother. We notice that the Live
Birth Register of STNM Hospital (exhibit-14) was produced
in the original by P.W.11 - the Additional Medical
Superintendent holding additional charge of Registrar of
Birth & Deaths without any objection. We also notice that
the defence did not contest the correctness or the
truthfulness of the information contained in the above
documents.
48. The above depositions of close relatives of the
victim, the victim herself, her friends - the minor witnesses
and the other prosecution witness who had occasion to
interact with the victim does confirm that the observation of
xxxx (name redacted) vs. State of Sikkim
the learned Special Judge that the victim appears to be a
minor is correct. Therefore, even if we accept the opinion of
the learned Judge that the prosecution has not been able to
prove the documentary evidence, i.e., the Live Birth Register
of STNM Hospital (exhibit-14), the Immunization Record
(exhibit-12) or the School Admission Register (exhibit-9)
which records the date of birth of the victim, we cannot get
ourselves to ignore the other evidences led by the
prosecution as well as the observation of the learned Special
Judge that the victim appears to be a minor.
49. On examination of the evidence led by the
prosecution and the cross-examination of the above
witnesses, we are of the opinion that there cannot be an iota
of doubt that the victim was a minor child.
50. We are reassured about the minority of the child as
even the appellant who is admittedly the father of the victim
when examined under Section 313 Cr.P.C. confirmed that
she was his daughter and she was five years old.
51. The learned Special Judge has confirmed that on
her physical examination the victim appears to be a minor.
This fact has been confirmed by all the above prosecution
witnesses who have had the opportunity to physically
examine her or have known her. The prosecution story is
that the mother of the victim had eloped and therefore, was
xxxx (name redacted) vs. State of Sikkim
not examined. The accused was her father who had the right
of silence. The failure of the parents to procure the victim's
birth certificate cannot be held against the victim. The
victim's grandfather - P.W.3 and her aunt - P.W.1 confirmed
the victim's age. The minority of the victim was glaring on
the face of the record. We are of the considered view that the
learned Special Judge swayed by the technicalities of
proving documents ignored other vital evidence which would
unerringly prove beyond any reasonable doubt that the
victim was but a five year old child.
52. We say so because Section 3 of the Indian Evidence
Act, 1872 provides that a fact is said to be proved when,
after considering the matters before it, the Court either
believes it to exist, or considers its existence so probable
that the prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists.
53. In Rajesh Yadev vs. State of U.P.9, the Supreme Court
held:
"12. Section 3 of the Evidence Act defines "evidence", broadly
divided into oral and documentary. "Evidence" under the Act is
the means, factor or material, lending a degree of probability
through a logical inference to the existence of a fact. It is an
"adjective law" highlighting and aiding substantive law. Thus,
it is neither wholly procedural nor substantive, though
trappings of both could be felt.
(2022) 12 SCC 200
xxxx (name redacted) vs. State of Sikkim
13. The definition of the word "proved" though gives an
impression of a mere interpretation, in effect, is the heart and
soul of the entire Act. This clause, consciously speaks of
proving a fact by considering the "matters before it". The
importance is to the degree of probability in proving a fact
through the consideration of the matters before the court. What
is required for a court to decipher is the existence of a fact and
its proof by a degree of probability, through a logical influence.
14. Matters are necessary, concomitant material factors to
prove a fact. All evidence would be "matters" but not vice
versa. In other words, matters could be termed as a genus of
which evidence would be a species. Matters also add strength
to the evidence giving adequate ammunition in the Court's
sojourn in deciphering the truth. Thus, the definition of
"matters" is exhaustive, and therefore, much wider than that
of "evidence". However, there is a caveat, as the court is not
supposed to consider a matter which acquires the form of an
evidence when it is barred in law. Matters are required for a
court to believe in the existence of a fact.
15. Matters do give more discretion and flexibility to the court
in deciding the existence of a fact. They also include all the
classification of evidence such as circumstantial evidence,
corroborative evidence, derivative evidence, direct evidence,
documentary evidence, hearsay evidence, indirect evidence,
oral evidence, original evidence, presumptive evidence,
primary evidence, real evidence, secondary evidence,
substantive evidence, testimonial evidence, etc.
16. In addition, they supplement the evidence in proving the
existence of a fact by enhancing the degree of probability. As
an exhaustive interpretation has to be given to the word
"matter", and for that purpose, the definition of the expression
of the words "means and includes", meant to be applied for
evidence, has to be imported to that of a "matter" as well.
Thus, a matter might include such of those which do not fall
within the definition of Section 3, in the absence of any express
bar.
17. What is important for the court is the conclusion on the
basis of existence of a fact by analysing the matters before it
on the degree of probability. The entire enactment is meant to
facilitate the court to come to an appropriate conclusion in
proving a fact. There are two methods by which the court is
expected to come to such a decision. The court can come to a
xxxx (name redacted) vs. State of Sikkim
conclusion on the existence of a fact by merely considering the
matters before it, in forming an opinion that it does exist. This
belief of the court is based upon the assessment of the matters
before it. Alternatively, the court can consider the said
existence as probable from the perspective of a prudent man
who might act on the supposition that it exists. The question as
to the choice of the options is best left to the court to decide.
The said decision might impinge upon the quality of the
matters before it.
18. The word "prudent" has not been defined under the Act.
When the court wants to consider the second part of the
definition clause instead of believing the existence of a fact by
itself, it is expected to take the role of a prudent man. Such a
prudent man has to be understood from the point of view of a
common man. Therefore, a Judge has to transform into a
prudent man and assess the existence of a fact after
considering the matters through that lens instead of a Judge. It
is only after undertaking the said exercise can he resume his
role as a Judge to proceed further in the case. "
54. In the present set of facts, there is more than
satisfactory evidence for the Special Court to believe that the
victim was a five year old child. Even as a prudent man, the
evidence led by the prosecution would lead the Special Court
to consider that in all probability the victim was a child.
55. There is yet another aspect we need to consider on
the question of determination of the age of the minor victim.
In Jarnail Singh vs. State of Haryana10, the Supreme Court
was dealing with a case of rape of a minor under the
provision of IPC. When the question arose with regard to the
determination of the age of the minor victim the Supreme
Court referred to Rule 12 of the Juvenile Justice (Care &
(2013) 7 SCC 263
xxxx (name redacted) vs. State of Sikkim
Protection of Children) Rules, 2007 (JJ Rules 2007) and
opined that even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, the
statutory provision should be the basis for determining age,
even of a child who is a victim of a crime as there is hardly
any difference insofar as the issue of minority is concerned,
between a child in conflict with law, and a child who is a
victim of crime. Under Rule 12 of the JJ Rules, 2007, the
age determination inquiry was required to 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. ....."
56. The JJ Act has since been amended. The amended
JJ Act has also been examined by the Supreme Court vis-à-
vis determination of age of the victim under the POCSO Act.
xxxx (name redacted) vs. State of Sikkim
57. In P. Yuvaprakash vs. State Rep. By Inspector of
Police11, the Supreme Court was dealing with a case of
conviction under Section 6 of the POCSO Act where the
victim was "aged 17 years (running 18 years)". When an
issue was raised as to whether the prosecution had been
able to establish the minority of the victim, the Supreme
Court held that from a conjoint reading of Section 34 of the
POCSO Act and Section 94 of the Juvenile Justice (Care &
Protection of Children) Act, 2015 (JJ Act), it is evident that
wherever a 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 and the three documents in order of
which the JJ 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 of the Board:
Provided such age determination test
conducted on the order of the Committee or the Board
shall be completed within fifteen days from the date
of such order".
2023 SCC OnLine SC 846
xxxx (name redacted) vs. State of Sikkim
58. Section 94 of the JJ Act is reproduced herein below:
"94. Presumption and determination of age.-
(1)Where, it is obvious to the Committee or the Board,
based on the appearance of the person brought
before it under any of the provisions of this Act (other
than for the purpose of giving evidence) that the said
person is a child, the Committee or the Board shall
record such observation stating the age of the child
as nearly as may be and proceed with the inquiry
under section 14 or section 36, as the case may be,
without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether the
person brought before it is a child or not, the
Committee or the Board, as the case may be, shall
undertake the process of age determination, by
seeking evidence by obtaining -
(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:
Provided such age determination test
conducted on the order of the Committee or the Board
shall be completed within fifteen days from the date
of such order.
(3)The age recorded by the Committee or the Board to
be the age of person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of
that person".
59. Although the Supreme Court was dealing with a
case involving victims aged 16 years and 17 years in Jarnail
Singh (supra) and P. Yuvaprakash (supra) respectively, we are
of the view that in a case like the one before us it would not
be incorrect for the Special Court under the POCSO Act to
xxxx (name redacted) vs. State of Sikkim
follow the procedure laid down in Section 94 (1) of the JJ Act
and record its observation stating the age of the child as
nearly as may be when the victim is brought before it to
depose and thereafter proceed with the rest of the trial.
60. As settled by the Supreme Court in Ramvijay Singh
vs. State of U.P.12, as per the scheme of the JJ Act, when it is
obvious to the Committee or the Board, based on the
appearance of the person, that the said person is a child, the
Board or Committee shall record observations stating the
age of the child as nearly as may be without waiting for
further confirmation of the age. Therefore, the first attempt
to determine the age is by assessing the physical appearance
of the person when brought before the Board or the
Committee. It is only in case of doubt that the process of age
determination by seeking evidence becomes necessary.
61. We are of the view that the procedure for the Board
or the Committee to follow to determine the age of the
person should be followed by the Special Court as well.
62. We are of the view that insofar as the age of a minor
victim is concerned the best evidence available before the
Special Court is the child produced as prosecution witness.
A child of 5 years will definitely physically appear so and
cannot look like an adult of 18 years above. It is only in
(2021) 15 SCC 241
xxxx (name redacted) vs. State of Sikkim
such cases where the court cannot assess the minority of
the child victim from her or his physical appearance that it
would be difficult for the Special Court to record observation
as required under Section 94(1) of the JJ Act.
63. The observation of the learned Special Judge on
record at paragraph 15 of the impugned judgment that the
victim appears to be a minor would lend assurance to the
other evidences placed by the prosecution to establish the
minority of the victim. If the defence then wants to contest
the minority of the victim it must do so and establish her
majority either from the prosecution evidence or by bringing
forth any other evidence for the consideration of the learned
Special Judge.
64. We hasten to add that our observation is not to be
misunderstood by the prosecution and the investigating
agencies. It is their primary duty to place before the Special
Court credible and conclusive evidence to establish the age
of the victim. It is the primary duty of the investigating
agencies to collect all such evidence that would go to prove
the minority of the victim. It is the duty of the prosecution to
ensure that the evidence collected during investigation by
the investigating agencies is proved conclusively before the
learned Special Judge. Even if on appearance the victim is a
minor child investigating agencies and the prosecution must
xxxx (name redacted) vs. State of Sikkim
ensure all credible evidences must be produced and proved
before the Special Court.
65. Determination of the age of the victim is crucial for
prosecution under the POCSO Act and the learned Special
Judge must ensure that the same is conclusively done. The
Supreme Court has repeatedly held that the duty of the
Presiding Judge of a criminal trial is not to watch the
proceedings as a spectator or a recording machine but he
has to participate in the trial by evincing intelligent active
interest by putting questions to witnesses to ascertain the
truth. It was held so by the Supreme Court in Dinesh Kumar
vs. State of Haryana13.
66. In Anees vs. State Government of NCT14, the Supreme
Court held that the Judge is expected to actively participate
in the trial, elicit necessary materials from the witnesses in
the appropriate context which he feels necessary for
reaching the correct conclusion. The Judge has uninhibited
power to put questions to the witness either during the
chief-examination or cross-examination or even during re-
examination for this purpose. If a Judge feels that a witness
has committed an error or slip, it is the duty of the Judge to
ascertain whether it was so, for, to err is human and the
(2023) SCC OnLine SC 564
(2024) SCC OnLine SC 757
xxxx (name redacted) vs. State of Sikkim
chances of erring may accelerate under stress of
nervousness during cross-examination.
67. We are disturbed that the learned Special Court,
who is required to be in absolute control of the trial, could
not conclusively determine and conclude the minority of the
victim who according to his own observation was a minor.
On consideration of the matters before the learned Special
Judge we have no hesitation in holding that the learned
Special Judge had failed to appreciate the evidence in its
correct perspective and by doing so acquitted the appellant
for the charges under the POCSO Act on the sole ground
that the prosecution had failed to prove that the victim was
a child.
68. We, therefore, issue this notice to show cause upon
the convict as to why his sentence under Section 376 of the
IPC alone shall not be enhanced to Section 376AB of the IPC
and Sections 5(l), 5(m) and 5(n) of the POCSO Act as well.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
Approved for reporting: Yes
to
