This Criminal Jail Appeal Has Been ... vs Unknown
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                                          RESERVED JUDGMENT


   IN THE HIGH COURT OF UTTARAKHAND AT
                              NAINITAL


               THE HON'BLE SRI RAVINDRA MAITHANI
                                  AND
                THE HON'BLE SRI ALOK KUMAR VERMA




         CRIMINAL JAIL APPEAL NO.27 OF 2015


  Between:

  Suraj Pal                                            ...Appellant

  and


  State of Uttarakhand                            ...Respondent

Counsel for the Appellant : Mr. D.N. Sharma, learned Amicus Curiae.

Counsel for the State. : Mr. V.K. Jemini, learned Deputy Advocate General assisted by Ms. Meena Bisht, learned Brief Holder for the State.

RESERVED ON : 28.04.2022 DELIVERED ON : 13.07.2022

The Court made the following:

Judgment: (per Hon'ble SRI ALOK KUMAR VERMA, J.)

This Criminal Jail Appeal has been filed against the judgment dated 07.08.2015/10.08.2015, passed by the Judge, Fast Track Court/Additional Sessions Judge/Special Judge, POCSO, Udham Singh Nagar in Special Sessions Trial No. 08 of 2014, "State vs. Suraj Pal", whereby, the appellant has been convicted under Sections 363, 366, 376 (2) of the Indian Penal Code (hereinafter referred to as, "IPC") and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as, "the Act, 2012") read with Section 42 of the Act, 2012 and has been sentenced to undergo rigorous imprisonment for a period of twelve years along with a fine of Rs.50,000/- for the offence under Section 376 (2) of IPC. In default of payment of fine, the appellant has been directed to undergo further additional simple imprisonment for a period of six months. He has been sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.10,000/- for the offence punishable under Section 366 of IPC. In default of payment of fine, the appellant has been directed to undergo further additional simple imprisonment for a period of three months. Both the sentences are directed to run concurrently.

2. Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that the informant, father of the prosecutrix, informed the Police Station through his written information (Ext.Ka.1) regarding missing her daughter. According to the said information, on 31.08.2013 at around 9.00 a.m., when the informant and his wife were not at house, his daughter, aged about 16 years (prosecutrix), went to get water at the hand pump, located near the house of the informant. When she did not return home, a search was undertaken.

3. The said information was registered at 19.15 hrs. on 21.09.2013. On 29.10.2013, the prosecutrix was recovered from the custody of the appellant and the appellant was arrested. On the same day, i.e. on 29.10.2013, the medical examination of the prosecutrix was conducted. Statements of the prosecutrix were recorded under Section 161 of the Code of the Criminal Procedure, 1973. During the investigation, a Transfer Certificate of the prosecutrix's school was obtained. After the completion of the investigation, charge-sheet (Ext.Ka.12) was filed by Sub-Inspector Bhim Bhaskar Arya (PW8).

4. The charges under Sections 363, 366, 376 of IPC and an additional charge under Section 6 of the Act, 2012 were framed against the appellant. He pleaded not guilty and claimed to be tried.

5. The trial court recorded the statements of eight prosecution witnesses.

6. The appellant pleaded innocence and false implication in his statement under Section 313 of the Code of Criminal Procedure, 1973.

7. The appellant has not adduced any defence evidence.

8. The trial court appraised the evidence adduced before it and held that the prosecution has successfully proved its case against the appellant beyond all reasonable doubts.

9. Aggrieved by the judgment of conviction and sentence, awarded by the trial court, the appellant appealed to this Court.

10. Mr. D.N. Sharma, the learned Amicus Curiae, appearing on behalf of the appellant, would contend that the appellant has been falsely implicated; the appellant and the prosecutrix fell in love with each other; both of them got married according to Hindu customs in Arya Samaj Mandir; at the time of the marriage, the age of the appellant was 25 years and that of the prosecutrix was 23 years; their marriage was being opposed by the prosecutrix's father and his relatives; the appellant and the prosecutrix had threat perception at the hands of the father and other relatives of the prosecutrix, therefore, they had filed a Writ Petition (C No.52604 of 2013) before the Hon'ble High Court of Allahabad claiming protection of their life.

11. Mr. D.N. Sharma, the learned Amicus Curiae, further submitted that after the recovery of the prosecutrix, she was sent to Nari Niketan by the order of the Sub- Divisional Magistrate, because she had an apprehension that if she went with her parents, they would kill her. He further argued that the statements of the prosecution witnesses, including the prosecutrix, are contradictory to each other and the trial court has wrongly appreciated the evidence, available on record.

12. As per contra, Mr. V.K. Gemini, learned Deputy Advocate General, appearing for the State, argued in support of the impugned judgment and submitted that the prosecution has proved its case beyond all reasonable doubts.

13. We have carefully assessed the evidence, available on record.

14. PW1 is the father of the prosecutrix and informant of this case. He stated that on 31.08.2013 at around 9:00 a.m., when he went to work in a hotel with his wife, his daughter (prosecutrix), aged about 14 years, went to get water at the hand pump, located near his house. When she did not return home, a search was undertaken. When no trace of his daughter could be found, he lodged a missing report (Ext. Ka1) at the police station.

15. PW2 is prosecutrix. Her examination-in-chief was recorded on 06.03.2014. According to her, on 31.08.2013 at around 8-9 a.m., she went to get water at the hand pump, where she met the appellant's sister-in-law (Bhabhi). She took her to the place where the appellant was residing. She was sitting in the room. Appellant's sister-in-law had locked the room from outside. She was locked in the room that night. On the second day at night, the appellant came and threatening to kill her by showing a knife took her to some other place by car. He raped her on the morning of 2nd September. After 2-3 days, he took her to some other place in the same car, where he had raped her again. She could not scream because of fear. He had taken her to different places for almost two months. He even took her to his house in Bareilly. At that time, his uncle and aunt were at his house, who knew that he had brought her away, but they did not object to it. One day, she was alone and the appellant's uncle's phone was there, from which she had called her father. On the second day, her father came to the appellant's house with the police and from there brought her and the appellant to Rudrapur. She further stated that her statement was recorded at the police chowki, after which, she

was medically examined and after recording her statement by the Magistrate, she was sent to Nari Niketan. She stated that due to fear of appellant, she refused to go with her parents and due to this fear she also recorded her statement to the police. She stated that she had studied from L.K.G. to Class 3rd standard in Bhartiya Shiksha Niketan, Rudrapur. She had not studied after Class 3rd standard.

16. PW3 Head Constable Hridesh Parihar is scriber of the missing report.

17. PW4 Dr. Sonali Mandal had conducted the medical examination of the prosecutrix on 23.10.2013. According to her, signs of having a physical relation with the prosecutrix were found. She proved the medical examination report (Ext. Ka4) and supplementary medical report (Ext. Ka5).

18. PW5 H.C.P. Nandan Singh was first Investigating Officer. According to him, he had collected a copy of Transfer Certificate of the prosecutrix, according to which, the date of birth of the prosecutrix is 02.06.2000. During the investigation, he received a letter of the prosecutrix, in which, she mentioned her age as 20 years and wrote that she was married to the appellant. According to this witness, he had arrested the appellant at Kichha by - pass on 29.10.2013 at around 03:00 p.m. and at that time, the prosecutrix was also with the appellant.

19. PW6 Constable Vinod Bhatt had amended the First Information Report on 29.10.2013 for the offence under Sections 363, 366 and 376 IPC.

20. PW7 Dharmendra Gambhir is Principal of Bhartiya Shiksha Niketan, Rudrapur. At the time of his statement, he had produced the original Admission Application of the prosecutrix, school admission register and a book related to the issuance of Transfer Certificate of the prosecutrix. According to this witness, the prosecutrix was admitted in this school on 02.07.2005 in Class 1st standard and her admission form was filled by her mother, according to which the date of birth of the prosecutrix is 02.06.2000.

21. PW8 Sub-Inspector Bhim Bhaskar Arya is Investigating Officer. He recorded the additional statement of the prosecutrix and after completion of the investigation, he had filed the charge-sheet (Ext. Ka12).

22. During the cross-examination, the prosecutrix has accepted her signature on paper number 10 Ka, although, according to her, the appellant had forcibly taken her signature on a plain paper.

23. In the present case, after receipt of the charge- sheet, the Chief Judicial Magistrate passed a committal order in the file of Criminal Case No.01 of 2014. The said paper number 10 Ka is available in that file. The said paper number 10 Ka is an application sent by the prosecutrix to the Senior Superintendent of Police, Udham Singh Nagar on 10.09.2013 and according to which, her father wanted her to get married against her will, while she wanted to marry with the appellant. That's why she got married with the appellant on 31.08.2013 on her own free will and she is living happily with the appellant. In this application, she has mentioned her age as 20 years while describing herself as an adult.

24. At this stage, it would be appropriate to take notice of the fact that after the said application 10 Ka, the prosecutrix along with the appellant filed a petition before the Hon'ble High Court, Allahabad to obtain a protection order.

25. In Writ-C No.-52604 of 2013, the Hon'ble High Court, Allahabad on 25.09.2013 observed that the petitioners as usual are claiming protection of their life from their parents/relatives who with the police help are disturbing their married life as they have married of their own free will against the wishes of their parents, and, passed the order -

"3. In view of legal position which has been summed up in the case of Smt. Nisha and another Vs. State of U.P. and others 2013(6) ADJ 225 without expressing any opinion about the marriageable age of both the petitioners, validity of their marriage or the genuineness of the marriage certificate, if any, produced, the writ petition is disposed of with liberty to the petitioners to approach the concerned court of Magistrate/ police authorities/Senior Superintendent of Police and to appraise any of these authorities of the disturbance by outsiders in their married life and in case it is so done, the police authorities would ensure that they are not put to any threat or torture and their married life is not disturbed provided they are prima facie found to be of marriageable age and married in accordance with law and further that they are not wanted or involved in any case in connection with the above marriage or living together subject to final outcome of the inquiry or investigation.

4. The filing of this petition or the order of its disposal would not be treated as proof of marriage between the petitioners which would be subject to declaration of their status by the court of competent jurisdiction or upon the

registration of their marriage with the competent authority in accordance with law.

5. Since the petition is being disposed of in limine, any person aggrieved by it is at liberty to apply for its recall, if the order has been obtained by suppression or concealment of facts or on false averments."

26. The prosecutrix stated in her cross-examination that the appellant did not take her to the Allahabad Court. The said statement is not believable. The Hon'ble High Court, Allahabad in its order dated 25.09.2013, has clearly mentioned that since the petition is being disposed of in limine, any person aggrieved by it is at liberty to apply for its recall, if the order has been obtained by suppression or concealment of facts or on false averments, but, neither the prosecutrix nor any member of her family made any attempt to move an application to recall the said order dated 25.09.2013.

27. According to the prosecutrix, she went with the appellant at different places from 31.08.2013 till her recovery. The case of the prosecution is that the prosecutrix was recovered from the custody of the appellant on 29.10.2013. In view of these facts, the statements of the prosecutrix that she was compelled to live with the appellant because of his fear, and, the appellant had forcibly taken her signature on a plain paper are also not believable because she had never raised any alarm, she offered no resistance, she never tried to intimate the neighbours or tried to escape in order to show her conduct that she was never ready or willing to go or stay with the appellant. Apart from these facts, Sub-Inspector Bhim Bhaskar Arya (PW8), Investigating Officer, had recorded the statement of the prosecutrix, in which she had said that she was an adult and had married the appellant of her own free

will in Bareilly. In these circumstances, the conduct of the prosecutrix shows that she had voluntarily accompanied with the appellant.

28. Now, the only question to be determined is whether the prosecutrix was child, as per definition of "Child" under Section 2 (1) (d) of the Act, 2012, or not at the time of occurrence. If it is found from the evidence that the prosecutrix was a "Child" at the time of the incident, then her consent was inconsequential because the minor's consent is no consent in eyes of law.

29. Section 2 (1) (d) of the Act, 2012 defines "Child", means any person below the age of eighteen years.

30. In Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263, the Hon'ble Supreme Court held, "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".

31. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, framed under Section 68 (1) of the Juvenile Justice (Care and Protection of Children) Act, 2000, prescribed the procedures for determination of age. Rule 12 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."

32. In Parag Bhati vs. State of Uttar Pradesh, (2016) 12 SCC 744, the Hon'ble Supreme Court observed, "It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain (2012) 10 SCC 489, (2013) 1 SCC (Cri.) 83, an enquiry for determination of the age of the accused is permissible which has been done in the present case."

33. In Abuzar Hossain alias Gulam Hossain vs. State of West Bengal (supra), the Hon'ble Supreme Court held, "As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in rules 12 (3) (a) (i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. ......"

34. Therefore, it is well settled that the credibility and acceptability of the documents, as referred to Rule 12 (3) (a)

(i) to (iii), would depend on the facts and circumstances of each case and no hard and fast rule as such can be laid down in this regard.

35. The prosecutrix was first admitted to Bhartiya Shiksha Niketan in Class 1st standard on 02.07.2005. At that time, the date of birth of the prosecutrix was recorded as 02.06.2000. However, there is a serious dispute in regard to the authenticity of the date of birth, recorded in the "Admission Form" dated 02.07.2005, issued by Bhartiya Shiksha Niketan (Ext. Ka9).

36. It is pertinent to mention here that the prosecutrix had mentioned her age as 20 years while describing herself as an adult in her application 10 ka, dated 10.09.2013. Thereafter, she along with the appellant had sought protection order by showing herself as an adult. The prosecution witness H.C.P. Nandan Singh (PW5), the first Investigating Officer, stated in his cross-examination that he recorded the prosecutrix's statement, in which she had disclosed her age of 20 years while supporting her application 10 Ka. The investigation of the present case was transferred from H.C.P. Nandan Singh (PW5) to Sub-Inspector Bhim Bhaskar Arya (PW8).

37. Bhim Bhaskar Arya (PW8) has stated in his cross- examination that he recorded the additional statement of the prosecutrix on 30.10.2013, wherein, she stated that she was adult. He further stated that the prosecutrix also made a statement that her parents may have underestimated her age in school.

38. To prove age of the prosecutrix, the prosecution has relied upon the evidence of PW7 and the statements of the father and the prosecutrix.

39. According to the prosecution witness Dharmendra Gambhir (PW7), Principal of Bhartiya Shiksha Niketan, the "Admission Form" (Ext. Ka9) was filled by the mother of the prosecutrix, but, the prosecution has not examined the mother of the prosecutrix in evidence nor has given any explanation regarding not examining her. The so called thumb impression of the mother of the prosecutrix on the "Admission Form" (Ext. Ka9) has not been proved. Therefore, the date of birth of the prosecutrix recorded in the said Admission Form is found to be entered without any basis, so, the date of birth of the prosecutrix cannot be determined by believing only on this Admission Form.

40. According to the First Information Report, lodged by the father of the prosecutrix, the age of the prosecutrix was 16 years at the time of the occurrence, whereas, in his testimony before the court, he, without giving any exact date of birth of the prosecutrix, stated that the age of the prosecutrix was 14 years at the time of occurrence. But, this statement is given without any record or any basis. According to the prosecutrix (PW2) her age was 14 years at the time of her examination-in- chief, recorded on 06.03.2014, but, she has not whispered anything regarding her date of birth or the year of birth. Therefore, these evidence do not give any clear picture regarding the age of the prosecutrix.

41. Considering the above, this Court has no hesitation to hold that the prosecution has miserably failed to prove that the prosecutrix was a "Child" at the time of occurrence.

42. In Bhagwan Singh and Others vs. State of M.P., (2002) 4 SCC 85, the Hon'ble Supreme Court observed that the golden thread which runs through the web of

administration of Justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted.

43. It has already been held that there is no positive evidence placed on record by the prosecution to prove that the prosecutrix was "Child" at the time of occurrence, and, it is also clear on careful analysis of the statements given by the prosecutrix that the statements of the prosecutrix have also inherent infirmities and material contradictions, therefore, the same may not be acted upon. The present case, the circumstances taken as a whole, creates doubt about the truthfulness of the prosecution story.

44. As a result, we accept the case of the appellant. Accordingly, the appeal is allowed. The impugned conviction and sentence dated 07.08.2015/ 10.08.2015, passed by the Judge, Fast Track Court/ Additional Sessions Judge/ Special Judge, POCSO, Udham Singh Nagar in Special Sessions Trial No.08 of 2014, "State vs. Suraj Pal", are set aside. The appellant is acquitted of the charge under Sections 363, 366 and 376 (2) IPC and Section 6 of the Act, 2012.

45. The appellant is in judicial custody. The appellant shall be released from jail, in case he is not otherwise required in any other case.

46. The appeal is, accordingly, allowed.

47. The appellant is directed to make compliance of Section 437 - A of the Code of Criminal Procedure, 1973 within three weeks from the date of this judgment by appearing

before the trial court concerned and execute a personal bond and two reliable sureties in the like amount to the satisfaction of the trial court, which shall be effective for a period of six months.

48. The Registry is directed to provide a copy of this judgment to the Superintendent of concerned jail and the concerned trial court for intimation and compliance.

____________________ Ravindra Maithani, J.

___________________ Alok Kumar Verma, J.

Dated: 13th July, 2022 JKJ/Pant