Tripura High Court
Sri Shamim Ahamed vs The State Of Tripura on 6 August, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) No.48 of 2023
Sri Shamim Ahamed,
Son of Amir Hossain,
Resident of Hirapur, Maharani,
P.S. R.K. Pur, District:Gomati Tripura
---- Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. S. Lodh, Adv.
For Respondent(s) : Mr. Samrat Ghosh, Addl. P.P.
Date of Hearing : 23.07.2024
Date of delivery of
Judgment and Order : 06.08.2024
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
[B. Palit, J]
This appeal is directed challenging the judgment and
order of conviction and sentence dated 11.09.2023 and
13.09.2023 delivered by Learned Special Judge, Gomati
District, Udaipur in connection with Special (POCSO) 17 of
2021. By the said judgment the Learned court below
sentenced the convict to suffer RI for a period of two years
and to pay a fine of Rs.3,000/- in default to suffer further RI
for two months under Section 363 of IPC. The convict was
further sentenced to suffer RI for 20 years and to pay a fine
of Rs.10,000/- under Section 4 of the POCSO Act in default
to suffer further RI for six months and he was further
sentenced to suffer RI for six months and to pay a fine of
Rs.1,000/- for his conviction under Section 506 of IPC in
default to suffer further RI for one month with further
direction that all the sentences shall run concurrently.
02. Heard Learned counsel Mr. S. Lodh representing
the appellant and also heard Mr. S. Ghosh, Learned Addl.
P.P. representing the state-respondent.
03. Before coming to the conclusion of this appeal let
us discuss about the subject matter of the prosecution in
brief. In this case the prosecution was set into motion on
the basis of an FIR laid by one Lipika Sarkar alleging inter
alia that on 18.03.2021 at around 10.30 a.m. her minor
daughter (name withheld) aged about 14 years a student of
class-IX was proceeding towards her school on foot. On the
way when she reached at Taltola that time the accused
appellant approached her to give a lift by his motor bike to
her school to which she contended and boarded his bike.
Thereafter the accused appellant brought her to Eco Park at
Tepania by the said bike riding with high speed. In the said
park the accused appellant forcefully embraced her
daughter and kissed her cheek. Then her daughter began to
cry to which she was threatened by the appellant-accused
and after that she was sent to her school by an auto and
then she came back to home and narrated the incident to
her mother, i.e the informant. Accordingly the FIR was laid
by the informant.
04. O/C, R.K. Pur Women PS accordingly on receipt
of FIR registered FIR No.14 of 2021 dated 20.03.2021 under
Sections 354/506 of IPC and Section 8 of the POCSO Act
and endorsed this case to WSI Purnima Das Sarkar for
investigation. Accordingly the I.O. took up investigation of
this case and during investigation on the prayer of I.O.
Section 376 of IPC and Section 4 of POCSO Act was added
in this case and the case was further assigned to WSI Ripita
Bhattacharjee who on completion of investigation laid
chargesheet against the accused-appellant for his
prosecution before the court. Thereafter cognizance of
offence was taken and the Learned Special Judge after
hearing the parties framed formal charge under Section
363/376/506 of IPC and also under Section 4 of the POCSO
Act against the appellant to which he pleaded not guilty and
claimed to be tried. During trial prosecution to substantiate
the charge adduced in total 12 numbers of witnesses and
certain documents were marked on behalf of the
prosecution as exhibits and after closure of prosecution
evidence the appellant was examined under Section 313 of
Cr.P.C when he denied the prosecution evidence and
expressed his willing and desire to adduce evidence.
Accordingly on behalf of the appellant four witnesses were
examined. Finally on conclusion of trial Learned court below
found the appellant to be guilty and convicted him thereon.
Challenging that conviction the present appeal is before this
court.
05. At the time of hearing of argument Learned
counsel appearing for the appellant fairly submitted that in
this case the evidence of prosecution suffers from various
infirmities for which the charge against the appellant cannot
sustain but the Learned court below did not consider the
same but found the appellant to be guilty and convicted him
accordingly for which the interference of the court is
required. Learned counsel further submitted that from the
evidence on record it appears that the alleged incident took
place inside the Tepania Park but according to victim the
alleged incident took place outside the Tepania Eco park
because from the evidence of the prosecution witnesses it
transpires that on the alleged day the said park was closed.
Learned counsel also submitted that there was no such
explanation in this regard from the side of prosecution. It
was further submitted that according to the prosecution the
alleged appellant-accused drove the bike in high speed. But
from the evidence on record it would be clear that on that
relevant point of time the alleged road was very busy, so it
was not possible on the part of the accused-appellant to
drive the bike in high speed for which there is no scope to
place any reliance upon the evidence of the prosecution and
more so, according to Learned counsel from the alleged spot
the victim was alleged to have boarded the bike of the
appellant and the alleged P.O. is situated at a long distance
and on the way so many trijunction falls, but the victim did
never raise any voice that she was forcefully taken by the
alleged accused. So according to Learned counsel in course
of argument of hearing the prosecution also has failed to
explain this infirmities found on the evidence of record of
the prosecution witnesses including the evidence of the
victim girl. Learned counsel further submitted that the
prosecution in this case could not prove the age of the
victim in accordance with law that on the alleged day she
was a minor. Situated thus, no charge under the POCSO Act
could lie against the appellant. But the Learned court below
ignoring all these aspects found the appellant to be guilty
and finally Learned counsel for the appellant submitted that
since the evidence on record of the prosecution suffers from
various infirmities so the present appellant deserves
acquittal and urged for allowing this appeal by setting aside
the judgment and order of sentence and conviction of the
Learned court below.
06. Per contra, Learned Addl. P.P. Mr. S. Ghosh
appearing on behalf of the prosecution i.e. the state-
respondent submitted that in this case the Learned court
below rightly on the basis of the evidence on record of the
prosecution found the appellant to be guilty and convicted
him accordingly and as such at this stage there is no scope
to allow the appeal and to set aside the judgment of the
Learned court below. Learned Addl. P.P. further submitted
that the witnesses of the prosecution were thoroughly
cross-examined by the accused-appellant but the evidence
of the material witnesses could not be shattered at any
length by the accused-appellant. Furthermore, according to
Learned Addl. P.P. regarding the alleged P.O. as submitted
by Learned counsel for the appellant there may be some
variation because the victim for the first time went to that
place and which was also a big area, so it was not possible
on her part to whisper about the exact identification of the
P.O. as to whether the same was inside the park or outside
the park or not. Learned Addl. P.P. further submitted that
on the statement of the victim girl the informant disclosed
that the incident took place inside the Tepania Park so for
this minor contradiction there is no scope to disbelieve the
evidence on record of the prosecution. As alleged by the
appellant that the victim did not raise her voice at the time
of riding the bike by the alleged appellant in this regard
Learned Addl. P.P. submitted that since the accused
appellant was known to the victim earlier so when she
boarded the bike voluntarily that time there was no scope
on her part to raise any voice but she could realize after
crossing over a certain route that the appellant was
driving/riding the same in different direction without going
to her house that time she might have asked the appellant
to stop but that was not adhered by the appellant. So the
submission of Learned counsel for the appellant that the
victim did not raise any voice was not correct and cannot be
accepted in accordance with law. Learned Addl. P.P. further
submitted that the medical evidence on record clearly
indicates that on the alleged date and time the present
appellant committed rape upon the victim girl knowing the
same to be a minor. So the Learned court below rightly and
reasonably found the appellant to be guilty and convicted
him accordingly and there is no scope to disbelieve the
prosecution evidence in this regard. Learned Addl. P.P.
finally submitted that the appellant by adducing defence
witness also could not raise any doubt about the
prosecution story. So legally there was no scope to place
any reliance upon the evidence and finally urged for
dismissal of this appeal upholding the judgment and order
of conviction of the Learned court below.
07. Now let us discuss the evidence on record of the
prosecution as well as the appellant in respect of the
prosecution case. The prosecution as already stated has
adduced as many as 12 numbers of witnesses. PW-1, Lipika
Sarkar is the mother of the victim. According to her the
victim was born on 18.10.2005. On the day of incident she
was a student of Class-IX of East R.K. Pur Girls High School
and was aged about 14 years. On 18.03.2021 she left for
her school and on the way Md. Shamim Ahmed who is a
resident of Maharani and previously known to them being a
private tutor of a student offered to drop her daughter to
her school in his bike. Initially her daughter refused but
being persuaded she boarded the bike with said Shamim
Ahmed. But he did not drop her to school rather took the
motor cycle to Tepania park ignoring the protest of her
daughter. He also threatened her daughter to keep quiet or
face dire consequences. On reaching the park they found it
was closed. He then took her daughter to a jungle on the
backside of the park. Then he proposed to marry his
daughter and when his daughter refused, he brought out a
knife and on the face of knife he forcibly raped her
daughter. He also threatened to kill her daughter if she
raises her voice. Later on, at about 1 p.m. in the afternoon
he put her daughter in a auto which dropped her daughter
in front of her school from where she returned back to
home. On reaching home she was crying and being
enquired by her she (the victim) narrated the entire incident
to her. She further stated that her husband at that time was
not at home. He returned back at around 9 p.m. and then
they discussed the matter and on the next day they
approached police. She further stated her FIR was written
by one Narayan Debnath, advocate's clerk. In the FIR she
did not mention rape to protect the dignity of her daughter.
She identified her signature on the FIR marked Exbt.P-1.
She further stated that during investigation police seized the
birth certificate of her daughter. The witness identified her
signature on the seizure list dated 20.03.2021 marked as
Exbt.P2. She further identified the birth certificate seized
from her which was marked as Exbt.P3.
During cross-examination she stated that she
told police the time when her husband returned back to
home at night. She was confronted with the statement that
she stated to I.O. that in the night at around 9 p.m. her
husband returned back to home when they discussed the
matter and on the next day they approached the police. But
that portion of statement was not found in her statement
recorded by I.O. under Section 161 of Cr.P.C. She further
stated that the FIR was lodged at around 12 p.m. in the
afternoon on the following day. She was also confronted
with the statement that she told I.O. the reason for delay of
lodging the FIR but that was not found in her statement
recorded by I.O. She further stated that she was unable to
say as to whether there were three routes from the school
to hospital. To reach Tepania from the school one has to
pass through Brahmmabari Traffic point, Ramesh
Choumuhani Traffic lights, Rajarbag Motor Stand, Udaipur
College, Don Bosco School. Both at Brahmmabari and
Ramesh Choumuhani there are presence of traffic police and
there is a large gathering at all the above mentioned points
during office and school hours. She further stated that her
daughter was not aware of the road. She also stated that
the accused used to provide private tuition to many
students in the locality. Nothing more came out relevant.
08. PW-2 is the victim. She deposed that on
18.03.2021 she was proceeding towards her school at
around 10.30 am when she was a student of Class-IX of
East RK Pur Girls' High School. That time Md. Shamim who
is previously known to her being a private tutor of her
neighbour approached her on a bike. Initially she declined
but on his insistence she boarded the bike. But instead of
dropping her in front of the school he kept riding the bike.
When she requested to drop the bike he threatened her with
dire consequences and asked her to keep her mouth shut.
He took her to the Tepania Park which was closed. He then
took her to a jungle behind the park. Then he proposed to
marry her which she declined. Thereafter he brought a knife
from his bag and threatened to kill her. He forced her to
disrobe of her school uniform. He then forcefully had sex
with her against her will. Thereafter at around 1 p.m. in the
afternoon he brought her to the main road and hiredd an
auto and asked her to board the same. The auto dropped
her to school from where she returned back to home. At
that time her father was not present. She narrated the
incident to her daughter. Subsequently police brought her to
a Magistrate to whom she narrated the entire incident. She
identified her signature on the statement which was marked
as Exbt.P4/1. Police took her to hospital where she was
subjected to medical examination.
During cross-examination she stated that it takes
half an hour to reach her school from her house. She was
confronted with the statement the accused brought her to a
jungle behind the park but that part was not found in the
statement of witness recorded by I.O. But she admitted that
she made such statement to the I.O. of this case. She did
not tell the police that the route taken by the accused while
taking her to the park. She could not say the number,
colour etc. of the bike. She reached home on that day at
about 1.30 p.m. in the afternoon. She also denied to have
any previous history of sexual intercourse. Nothing more
came out relevant.
09. PW-3, Shiban Sarkar deposed that the victim of
this case is his daughter and the informant is his wife. On
18.03.2021 he returned from work at around 8.30 p.m. On
return to his house his wife told that their daughter while on
her way to school was forcibly taken by the accused
Shamim Ahmed to Tepania Eco Park where she was raped
against her will. On the next day he accompanied with his
wife and daughter to the police station where his wife
lodged a complaint. During course of investigation police
seized the birth certificate of his daughter and identified his
signature on the seizure list marked Exbt.P2/1. He further
stated that his daughter was aged 14 years at that time.
Nothing came out relevant during cross-examination.
10. PW-4 Rupasree Debbarma deposed that on
20.03.2021 she was posted as Constable at RK PUr Women
PS. On that day WSI Purnima Das(Sarkar) seized the
original birth certificate of the victim by preparing a seizure
list and took her signature on the seizure list and the
witness identified her signature on the seizure list marked
Exbt.P2/2. She was declined to cross-examine by the
appellant.
11. PW-5, Gitanjalai Jamatia deposited that on
20.03.2021 she accompanied WSI Purnima Das to Gomati
District Hospital where in connection with RK Pur Women PS
Case No.14/2001 madam seized some blood and biological
samples of victim collected by Dr. Nista Das. She put her
signature on the seizure list and identified the same marked
Exbt.P5.
12. Similarly PW-6 Arpita Majumder also deposed in
the same manner like PW-5 and identified her signature on
the seizure list marked Exbt. P6.
13. PW-7, Narayan Debnath is the scribe who stated
that on 19.03.2021 as per narration of the informant, Lipika
Sarkar he wrote the ejahar and he read over the contents to
the informant. On admission by informant that it was
correctly written he signed as a scribe and on identification
the FIR was marked Exbt.1/1. During cross-examination
nothing came out relevant.
14. PW-8, Mampi Das deposed that on 22.03.2021
she was posted in Tripura Sundari Sub-Divisional Hospital
and on that day in connection with RK Pur Women PS Case
No.14/2001 madam seized some blood and biological
samples of the accused Shamim Ahmed by Dr. Siddhartha
Das and the witness identified her signature on the seizure
list marked Exbt.P6/1. She was declined to cross-examine
by the appellant.
15. PW-9, Dr. Nishtha Das deposed that on
20.03.2021 she was posted as Medical Officer at District
Hospital, Gomati. On that day she examined the victim aged
about 15 years in connection with RK Pur Women PS case
No.14/202. During examination she found that her hymen
was recently torned at 6 O'clock position. The age of injury
was around 1/2 day. She collected urethral, vaginal and
anal swab and handed over the same to the police for
analysis. Besides the physical examination she was of the
opinion that there are signs suggestive of forceful
penetration of vagina. She further clarified that the victim
had no previous sexual history. She identified her report
marked Exbt.P7 in five sheets of paper. He also stated that
the police seized the swab collected by her by preparing a
seizure list and identified her signature on the seizure list
marked Exbt.P5/1.
During cross-examination she stated that there
was no other injury in the victim except the tear in the
hymen. Hymen can tear in other ways also. She further
clarified that it was not necessary that in case of forceful
penetration there must be tenderness or swelling in the
inner aspect of the thigh. Nothing more came out relevant.
16. PW-10, WSI Purnima Das Sarkar deposed that on
20.03.2021 OC, RK Pur Women PS registered the case and
she endorsed the same to her for investigation. She
identified the signature of Alpana Sarkar in the FIR marked
Exbt.P1/2. She also identified the printed FIR form which
was marked as Exbt.P8 in three sheets of paper. On receipt
of investigation she perused the FIR recorded statement of
victim as well as her mother. She seized the birth certificate
of the victim by preparing a seizure list marked Exbt.P2/3.
She further stated that she took the victim for medical
examination to the hospital and after the medical
examination the Doctor handed over urethral, vaginal, anal
swab and blood sample of the victim which she seized by
another seizure list dated 20.03.2021. She also identified
the seizure list marked Exbt.P9. On the day itself she
recorded the statement of Soma Muhuri, Gitanjali Jamatia
and Rupashree Debbarma. On 21.03.2021 she visited the
place of occurrence. There were two P.O.s and on
identification of the first P.O. the map marked as Exbt.P10
along with index marked Exbt.P10/1 and the second P.O.
makred Exbt.P11. She also stated that she arranged for
recording the statement of victim under Section 164(5)
Cr.P.C. She further stated that Dr. Siddhartha Nath
collected the blood sample of the accused which she seized
by seizure list dated 22.03.2021 marked Exbt.P6/2. The
swabs and the blood collected from the accused went to
SFSL for forensic analysis. On 22.03.2021 she recorded
statement of Arpita Majumder, Mampi Das. On 27.03.2021
she collected the medical report of the accused from the
hospital. She also collected the medical report of the victim.
During cross-examination she stated that the FIR
does not contain any information regarding rape. She
further stated that as per statement of the victim given to
the Magistrate that the incident took place inside Tepania
Park. She did not name the road on which 'A' the PO is
situated. Map does not indicate how far East RK Pur School
is from the PO and there is no land mark indication in her
map to identify the PO and there was also no land mark
indication about the second P.O and the hand sketch map
does not indicate the boundary of the Tepania park. She did
not examine any Forest Official posted in the Tepania Park.
She further stated that on that day the park was closed.
She did not seize the wearing apparels of the victim or the
accused. She further stated that the distance between the
two PO is around 6 kms. There were three routes to reach
PO 1 to PO 2. She stated that the alleged kidnapping took
place at around 10 am, i.e. school time. She further
admitted that during the school time the above noted route
will be busy with traffic. She further stated that the witness
PW 2 Purnima Sarkar did not tell her that the accused took
her to a jungle behind the park and also she did not make
any endeavour to find out the name of the driver or number
of auto rickshaw by which the victim came back to home.
17. PW-11, Ripita Bhattacharjee deposed that on
01.06.2022 she was posted as WSI of police R.K. Pur
Women PS and on that day OC, PS Alpana Sarkar re-
endorsed the RK Pur Women PS Case No.14/2021 to her for
investigation. Accordingly after receiving the case docket
she received final medical report of the victim and
submitted chargesheet against the accused appellant
Shamim Ahmed.
During cross-examination she stated that she
contacted with the witnesses but did not record their
statement afresh as there was no departure to their
respective statements made by them earlier to the I.O. and
she also admitted that she did not ascertain which route
was taken to take the victim from PO1 to PO2.
18. PW-12, Birendra Mohan Jamatia deposed that on
being summoned he produced the original Registrar of Birth
kept in the office of Registrar of Births & Deaths containing
the entries at Sl No.1788-05. He confirmed the contents of
Exbt.P3 in comparison with original registrar.
19. As already stated to counter the prosecution
case, the appellant in course of his examination under
Section 313 of Cr.P.C. desired to adduce his witnesses in
support of his defence. Accordingly four witnesses were
adduced by him.
20. DW-1, Safiya Khatun deposed that she had
engaged Shamim Ahmed as the private tutor of her son who
was a student of Navoday Bidalay. The complainant is her
neighbor and just a few days before her son's exam Lipika
told her to discontinue Shamim. She informed the matter to
Shamim and requested him to continue till the examination
is over. But a few days later he had been arrested by the
police. From the evidence of said witness it appears that
there is no evidence of the defence countering the
prosecution story.
21. Similarly DW-2 Humayun Kabir deposed that he
was a student of third year in the Netaji Subash College at
Udaipur. He along with 11/12 other students took tuition for
competitive exam from Shamim Ahamed in the year 2021.
At that time he share with them the fact that he had some
tuitions at Bondowar. However, one lady of that area
opposed to his tuitions and threatened him with false
implication. During cross nothing came out relevant.
22. DW-3, Mrinal Hossain deposed that on
18.03.2021 at around 10.30 am he was present in CPI(M)
party office on the bank of Jagannath Dighi and that time
accused was also present. There was a meeting scheduled
at 11.00 a.m which was presided over by Comrade Manik
Biswas. The meeting continued till 01.00 pm.
During cross-examination he stated that he did
not produce any document to show that he is a member of
the CPI(M) party nor he submitted any document that the
meeting took place by showing any resolution.
23. Similarly DW-4, Sohel Aktar also deposed in the
same manner that on 18.03.2021 at around 10.30 am he
was present in CPI(M) party office on the banks of
Jagannath Dighi. At that time accused was also present.
There was a meeting scheduled at 11.00 am and the
meeting was attended by Comrade Manik Biswas & others
and the meeting continued till 01.00 pm and Shamim
attended till the end.
During cross-examination he deposed that he
has not produced any document showing that he was a
member of the CPI(M) Party. No resolution of the meeting
was submitted.
These are the synopsis of the evidence on record of
the appellant before the Learned Trial court below in
support of his defence. From these witnesses nothing came
out to disbelieve the prosecution story.
24. During the course of argument Learned counsel
appearing for the appellant relied upon two citations in
order to support his case. In Krishan Kumar Malik vs.
State of Haryana reported in (2011) 7 SCC 130, Hon'ble
the Supreme Court in para Nos.22, 25, 31, 43 and 44
observed as under:
"22. Admittedly, the prosecutrix had travelled
certain distance in the Maruti van after her alleged
abduction but she did not raise any alarm for help.
This shows her conduct and behavior during the
whole process and renders her evidence shaky and
untrustworthy. The statement of the prosecutrix
that in all 11 persons were there in the Maruti van
renders it further doubtful as it would be
extremely difficult for 11 persons to be
accommodated in the Maruti van, the seating
capacity of which is only 5.
25. Needless to say the solitary evidence of the
presecutrix to bring home the charge of abduction
and commission of rape by the appellant does not
inspire confidence and is not of sterling quality. In
our opinion, it is neither prudent nor safe to hold
the appellant guilty of commission of the said
offence. We hold so, on account of many other
circumstances, which are against the prosecution,
narrated hereinbelow.
31. No doubt, it is true that to hold an accused
guilty for commission of an offence of rape, the
solitary evidence of the prosecutrix is sufficient
provided the same inspires confidence and appears
to be absolutely trustworthy, unblemished and
should be of sterling quality. But, in the case in
hand, the evidence of the prosecutrix, showing
several lacunae, which have already been
projected hereinabove, would go to show that her
evidence does not fall in that category and cannot
be relied upon to hold the appellant guilty of the
said offence.
43. With regard to the matching of the semen, we
find it from Taylor's Principles and Practice of
Medical Jurisprudence, 2nd Edn. (1965) as under:-
Spermatozoa may retain vitality (or free
motion) in the body of a woman for a long
period, and movement should always be
looked for in wet specimens. The actual time
that spermatozoa may remain alive after
ejaculation cannot be precisely defined, but
is usually a matter of hours. Seymour
claimed to have seen movement in a fluid as
much as 5 days old. The detection of dead
spermatozoa in stains may be made at long
periods after emission, when the fluid has
been allowed to dry. Sharpe found
identifiable spermatozoa often after 12
months and once after a period of 5 years.
Non-motile spermatozoa were found in the
vagina after a lapse of time which must have
been 3 and could have been 4 months.
Had such a procedure been adopted by the
prosecution, then it would have been a foolproof
case for it and against the Appellant.
44. Now, after the incorporation of Section 53-
(A) in the Criminal Procedure Code, w.e.f.
23.06.2006, brought to our notice by learned
counsel for the Respondent-State, it has become
necessary for the prosecution to go in for DNA test
in such type of cases, facilitating the prosecution
to prove its case against the accused. Prior to
2006, even without the aforesaid specific provision
in the Cr.P.C. prosecution could have still resorted
to this procedure of getting the DNA test or
analysis and matching of semen of the Appellant
with that found on the undergarments of the
prosecutrix to make it a fool proof case, but they
did not do so, thus they must face the
consequences."
25. In Jarnail Singh vs. State of Haryana reported
in (2013) 7 SCC 263, Hon'ble the Apex court observed as
under:
21. In order to support his contention, that the
prosecutrix was not a minor at the time of
occurrence, learned counsel for the appellant
placed reliance on the judgment rendered in Sunil
vs. State of Haryana, AIR 2010 SC 392. Ordinarily,
we would have extracted the observations on
which reliance was placed, but for reasons that
would emerge from our conclusion, we consider it
inappropriate to do so.
22. On the issue of determination of age of a
minor, one only needs to make a reference to Rule
12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred to as
the 2007 Rules). The aforestated 2007 Rules have
been framed under Section 68(1) of the Juvenile
Justice (Care and Protection of Children) Act,
2000. Rule 12 referred to hereinabove reads as
under:
12. Procedure to be followed in
determination of age-(1) In every case
concerning a child or a juvenile in conflict
with law, the court or the Board or as the
case may be, the Committee referred to in
rule 19 of these rules shall determine the
age of such juvenile or child or a juvenile in
conflict with law within a period of thirty
days from the date of making of the
application for that purpose.
(2) The court or the Board or as the case
may be the Committee shall decide the
juvenility or otherwise of the juvenile or the
child or as the case may be the juvenile in
conflict with law, prima facie on the basis of
physical appearance or documents, if
available, and send him to the observation
home or in jail.
(3) In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall 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.
and, while passing orders in such case shall,
after taking into consideration such evidence
as may be available, or the medical opinion,
as the case may be, record a finding in
respect of his age and either of the evidence
specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b)
shall be the conclusive proof of the age as
regards such child or the juvenile in conflict
with law.
(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be
below 18 years on the date of offence, on
the basis of any of the conclusive proof
specified in sub-rule (3), the court or the
Board or as the case may be the Committee
shall in writing pass an order stating the age
and declaring the status of juvenility or
otherwise, for the purpose of the Act and
these rules and a copy of the order shall be
given to such juvenile or the person
concerned.
(5) Save and except where, further inquiry
or otherwise is required, inter alia, in terms
of section 7A, Section 64 of the Act and
these rules, no further inquiry shall be
conducted by the court or the Board after
examining and obtaining the certificate or
any other documentary proof referred to in
sub-rule (3) of this rule.
(6) The provisions contained in this rule
shall also apply to those disposed off cases,
where the status of juvenility has not been
determined in accordance with the
provisions contained in sub- rule(3) and the
Act, requiring dispensation of the sentence
under the Act for passing appropriate order
in the interest of the juvenile in conflict with
law.
23. Even though Rule 12 is strictly applicable only
to determine the age of a child in conflict with law,
we are of the view that the aforesaid statutory
provision should be the basis for determining age,
even for a child who is a victim of crime. For, in our
view, there is hardly any difference in so far as the
issue of minority is concerned, between a child in
conflict with law, and a child who is a victim of
crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of
the 2007 Rules, to determine the age of the
prosecutrix VW-PW6. The manner of determining
age conclusively, has been expressed in sub-rule
(3) of Rule 12 extracted above. Under the
aforesaid provision, the age of a child is
ascertained, by adopting the first available basis,
out of a number of options postulated in Rule
12(3). If, in the scheme of options under Rule
12(3), an option is expressed in a preceding
clause, it has overriding effect over an option
expressed in a subsequent clause. The highest
rated option available, would conclusively
determine the age of a minor. In the scheme of
Rule 12(3), matriculation (or equivalent)
certificate of the child concerned, is the highest
rated option. In case, the said certificate is
available, no other evidence can be relied upon.
Only in the absence of the said certificate, Rule
12(3), envisages consideration of the date of birth
entered, in the school first attended by the child.
In case such an entry of date of birth is available,
the date of birth depicted therein is liable to be
treated as final and conclusive, and no other
material is to be relied upon. Only in the absence
of such entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if
such a certificate is available, then no other
material whatsoever is to be taken into
consideration, for determining the age of the child
concerned, as the said certificate would
conclusively determine the age of the child. It is
only in the absence of any of the aforesaid, that
Rule 12(3) postulates the determination of age of
the child concerned, on the basis of medical
opinion."
Referring the same Learned counsel for the
appellant drawn the attention of the court that the
prosecution in this case has failed to prove the charge
levelled against the accused appellant that on the alleged
day the appellant brought the victim to Tepania park and
thereafter committed the offence. Furthermore, the
prosecution also has failed to prove the age of the victim in
accordance with law. So according to Learned counsel since
the evidence of prosecution suffers from infirmities and the
appellant deserves acquittal in this case. As such, Learned
counsel urged for allowing the appeal by setting aside the
judgment.
26. On the other hand Learned Addl. P.P. in addition
to his submission also relied upon few citations. In State of
Uttar Pradesh vs. Chhotey Lal reported in (2011) 2 SCC
550 Hon'ble the Apex court in para nos.21, 22, and 23
observed as under:
"21. In Uday v. State of Karnataka: (2003) 4 SCC 46 this
Court put a word of caution that there is no straitjacket
formula for determining whether consent given by the
prosecutrix to sexual intercourse is voluntary, or whether
it is given under a misconception of fact. The Court at
page 57 of the Report stated:
21........In the ultimate analysis, the tests laid
down by the courts provide at best guidance to the
judicial mind while considering a question of
consent, but the court must, in each case consider
the evidence before it and the surrounding
circumstances, before reaching a conclusion,
because each case has its own peculiar facts which
may have a bearing on the question whether the
consent was voluntary, or was given under a
misconception of fact.
22. In the backdrop of the above legal position, with
which we are in respectful agreement, the evidence of
the prosecutrix needs to be analysed and examined
carefully. But, before we do that, we state, as has been
repeatedly stated by this Court, that a woman who is
victim of sexual assault is not an accomplice to the crime.
Her evidence cannot be tested with suspicion as that of
an accomplice. As a matter of fact, the evidence of the
prosecutrix is similar to the evidence of an injured
complainant or witness. The testimony of prosecutrix, if
found to be reliable, by itself, may be sufficient to convict
the culprit and no corroboration of her evidence is
necessary. In prosecutions of rape, the law does not
require corroboration. The evidence of the prosecutrix
may sustain a conviction. It is only by way of abundant
caution that court may look for some corroboration so as
to satisfy its conscience and rule out anyfalse
accusations.
23. In State of Maharasthra v. Chandraprakash
Kewalchand Jain:(1990) 1 SCC 550 this Court at page 559
of the Report said:
16. A prosecutrix of a sex-offence cannot be put on
par with an accomplice. She is in fact a victim of
the crime. The Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
physical violence. The same degree of care and
caution must attach in the evaluation of her
evidence as in the case of an injured complainant
or witness and no more. What is necessary is that
the Court must be alive to and conscious of the fact
that it is dealing with the evidence of a person who
is interested in the outcome of the charge levelled
by her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice
incorporated in the Evidence Act similar to
Illustration (b) to Section 114 which requires it to
look for corroboration. If for some reason the court
is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a
prosecutrix is an adult and of full understanding
the court is entitled to base a conviction on her
evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the
circumstances appearing on the record of the case
disclose that the prosecutrix does not have a
strong motive to falsely involve the person
charged, the court should ordinarily have no
hesitation in accepting her evidence."
27. In State of Uttar Pradesh vs. Krishna Master
and Others reported in (2010) 12 SCC 324, Hon'ble the
Supreme Court held as under:
"15. Before appreciating evidence of the witnesses
examined in the case, it would be instructive to
refer to the criteria for appreciation of oral
evidence. While appreciating the evidence of a
witness, the approach must be whether the
evidence of witness read as a whole appears to
have a ring of truth. Once that impression is found,
it is undoubtedly necessary for the Court to
scrutinize the evidence more particularly keeping
in view the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is against the
general tenor of the evidence and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief. Minor discrepancies
on trivial matters not touching the core of the case,
hyper-technical approach by taking sentences torn
out of context here or there from the evidence,
attaching importance to some technical error
committed by the investigating officer not going to
the root of the matter would not ordinarily permit
rejection of the evidence as a whole.
17. In the deposition of witnesses, there are
always normal discrepancies, howsoever, honest
and truthful they may be. These discrepancies are
due to normal errors of observation, normal errors
of memory due to lapse of time, due to mental
disposition, shock and horror at the time of
occurrence and threat to the life. It is not unoften
that improvements in earlier version are made at
the trial in order to give a boost to the prosecution
case albeit foolishly. Therefore, it is the duty of the
Court to separate falsehood from the truth. In
sifting the evidence, the Court has to attempt to
separate the chaff from the grains in every case
and this attempt cannot be abandoned on the
ground that the case is baffling unless the
evidence is really so confusing or conflicting that
the process cannot reasonably be carried out. In
the light of these principles, this Court will have to
determine whether the evidence of eye-witnesses
examined in this case proves the prosecution case.
29. At this stage, it would be well to recall to the
memory the weighty observations made by this
Court as early as in the year 1988 relating to
appreciation of evidence and the duties expected
of a Judge presiding over a criminal trial. In State
of U.P. v. Anil singh, AIR 1988 SC 1998, it is
observed as under:
...in the great majority of cases, the
prosecution version is rejected either for
want of corroboration by independent
witnesses, or for some falsehood stated or
embroidery added by witnesses. In some
cases, the entire prosecution case is doubted
for not examining all witnesses to the
occurrence. The indifferent attitude of the
public in the investigation of crimes could
also be pointed. The public are generally
reluctant to come forward to depose before
the Court. It is, therefore, not correct to
reject the prosecution version only on the
ground that all witnesses to the occurrence
have not been examined. It is also not
proper to reject the case for want of
corroboration by independent witnesses if
the case made out is otherwise true and
acceptable. With regard to falsehood stated
or embellishments added by the prosecution
witnesses, it is well to remember that there
is a tendency amongst witnesses in our
country to back up a good case by false or
exaggerated version. It is also experienced
that invariably the witnesses add
embroidery to prosecution story, perhaps for
the fear of being disbelieved. But that is no
ground to throw the case overboard, if true,
in the main. If there is a ring of truth in the
main, the case should not be rejected. It is
the duty of the Court to cull out the nuggets
of truth from the evidence unless there is
reason to believe that the inconsistencies or
falsehood are so glaring as utterly to destroy
confidence in the witnesses. It is necessary
to remember that a Judge does not preside
over a criminal trial merely to see that no
innocent man is punished. A Judge also
presides to see that a guilty man does not
escape. One is as important as the other.
Both are public duties which the Judge has
to perform."
Referring the same Learned Addl. P.P. submitted
that here in this case although some minor contradictions
are there, but the prosecution has projected the case in
such a manner that there is no room to disbelieve the
evidence on record of the prosecution.
28. We have heard the argument of both the sides at
length and gone through the evidence on record very
carefully. Since in this case there are two sets of evidence
both by the prosecution and the accused-appellant. So we
are to scrutinize the evidence on record of the prosecution
very carefully. As already stated the prosecution to
substantiate the charge has adduced 12 numbers of
witnesses in support of the prosecution story and on the
other side to discard the prosecution story the appellant has
adduced 4 numbers of witnesses. From the side of the
prosecution the victim and her parents were adduced and
other witnesses of the prosecution are connected to the
investigation part. So their evidences are not material for
decision of this case. There is no evidence on record before
us that on the alleged day at the time of occurrence of
offence excepting the victim some other persons are/were
there who have witnessed the occurrence of offence
because on the alleged day at the time of proceeding
towards school the victim met with the accused who was
riding a bike and requested her to give lift up to school but
without going to the school he rushed towards Tepania park
area where he committed the offence. Learned counsel for
the appellant in course of hearing of argument drawn the
attention of the court the prosecution could not explain the
exact P.O. whether it was inside the park or outside the
park or not.
29. On the contrary, the victim in course of her
examination stated that the accused appellant committed
the offence to the back side of the park as the park was
closed. It is also on record for the first time she went there.
So it was not possible on the part of the victim to say about
the exact area and location of the park as to whether the
crime committed outside or inside the park or not. So the
plea of defence that the prosecution failed to explain the
exact place of occurrence cannot be accepted and more so,
the mother of the victim after hearing the said fact from her
stated that the incident took place inside the Tepania park.
This plea of the defence cannot be accepted to disbelieve
the prosecution story. Another plea was raised that when
the alleged appellant was proceeding towards Tepania along
with the victim in high speed the victim did not raise any
voice but she did not which also costs a doubt about the
prosecution story. In this regard it is submitted that the
victim was earlier known to the accused appellant. So she
had no occasion to raise any voice and furthermore the
route through which the appellant was proceeding with her
was unknown to her, so naturally there was no scope to
raise any voice and furthermore when she could understand
that the appellant was proceeding towards a wrong direction
that time she raised voice but due to threatening she could
not say anything. So this plea of the appellant also cannot
be accepted. Now if we go through the medical evidence on
record it will transpire that on the alleged day the appellant
accused committed rape upon the victim. The appellant by
the trend of cross-examination could not in any manner
raise any cloud to disbelieve the evidence of the parents of
the victim and the Medical Officer also. Thus from the
evidence on record it appears that the appellant by the art
of cross-examination could not in any manner raise any
doubt to disbelieve the case of the prosecution. As already
stated, that the appellant in course of his examination under
Section 313 of Cr.P.C. desired to adduce witness and
accordingly four witnesses were adduced by the appellant
before the Learned Trial court below.
30. In course of examination under Section 313 of
Cr.P.C. the appellant took the plea that on that relevant
point of time he was in a meeting at CPI(M) party office
from 10.30 a.m. to 1. p.m. and two witnesses of the
appellant tried to support his version. But during cross-
examination it appears that they specifically stated that no
resolution of the meeting was produced before the court to
substantiate that plea and even those DWs 3 and 4
specifically stated that no such documentary evidence on
record were adduced by them to substantiate that they
were the members of CPI(M) party. So virtually there is no
scope to place any reliance upon the evidence of DWs 3 and
4 and the other witnesses of the appellant i.e. the DWs 1
and 2 could not inspire any confidence of the court to
disbelieve the prosecution story. Thus it appears that the
appellant has failed to satisfy the Learned court below that
on the alleged day he was not present to the P.O. rather he
was busy in a meeting of CPI(M) party office by adducing
any cogent and reliable evidence on record. As already
stated, that the appellant by the trend of cross-examination
of the material witnesses of the prosecution failed to make
any defence to disbelieve the prosecution story. The
citations as referred by the Learned counsel appearing for
the appellant are distinguishable in facts with the present
case. So we do not find any scope to apply the same
principle in the present case, rather the citations referred by
Learned Addl. P.P. appears to be more reasonable and
justified. Prosecution in this case also has been able to
prove the age of the victim by showing any documentary
evidence on record. Situated thus, on the face of the
evidence on record it appears that the Learned court below
rightly and reasonably convicted the appellant in this case
for which we do not find any scope to interfere with the
judgment delivered by the Learned Trial court.
31. In the result, the appeal filed by the appellant
stands dismissed. The judgment and order of conviction and
sentence dated 11.09.2023 and 13.09.2023 passed by the
Learned Special Judge, Gomati District, Udaipur in
connection with case No.Special (POCSO) 17 of 2021 stands
affirmed.
Send down the LCRs along with a copy of this
order.
Pending application, if any, stands disposed of.
JUDGE JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.08.07
15:06:44 +05'30'
Moumita
