Allowed

Raju v. State of Chhattisgarh

Chhattisgarh HC11 Dec 2023CRA/87/2003

Case brief

AI extract

What is this about?

Appeal against conviction for rape allowed. Court acquitted appellant as prosecution failed to prove prosecutrix was under 16 years old due to unreliable age certificate. Appellant denied consent; prosecutrix also admitted no resistance, no injuries, and prior acquaintance, supporting consent finding.

What did the court decide?

Conviction and sentence set aside. Appellant acquitted. Bail bonds remain operational for six months under Section 437-A CrPC.

Raju Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.87 of 2003

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Raju S/o Devsahay Yadav, aged about 21 years, R/o Kirta, PS Nandghat, District Durg, Chhattisgarh.

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---- Appellant

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Versus State of Chhattisgarh through PS Nandghat, District Durg, Chhattisgarh.

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---- Respondent

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For Appellant : Shri R.L. Rajak, Advocate. For State : Shri Wasim Miyan, Panel Lawyer.

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Hon’ble Shri Ravindra Kumar Agrawal, J. Judgment on Board

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11.12.2023.

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1. This appeal arise out of judgment of conviction and sentence dated 20.12.2002 passed by the IIIrd Additional Sessions Judge (FTC) Bemetara in Sessions Case No.118/2002, whereby the appellant has been convicted for the offence under Section 376 IPC and sentenced to undergo RI for 10 years with fine of Rs.25,000/-, in default to pay which, further RI for one year.

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2. Brief facts of the case is that, on 11.02.2002 at around 19:30 hours the prosecutrix PW-1 has lodged a report against the appellant to the effect that on 11.02.2002 when she went to her backyard at about 2:30 p.m. the appellant came there and called her. When she went near the appellant, he caught hold of her hand; gagged her mouth and took her to a pit near canal and after removing her clothes the appellant committed rape upon her. After half an hour when her father came, she

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informed the incident to her father and thereafter her mother and then a report has been lodged. Offence under Section 376 IPC was registered by the police and thereafter started investigation. Spot map, Ex.P/2, was prepared. The prosecutrix was sent for her medical examination to Civil Hospital, Bemetara, where Dr. Smt. Rajshree Deodhar, PW-5, has examined her and gave her report vide Ex.P/6, according to which, no external or internal injuries were noticed. Doctor gave her opinion that no definite opinion can be given about the rape. Two slides of vaginal swabs were prepared and given to the Police. With regard to age of the prosecutrix, the police has obtained a certificate Ex.P/5-C from Primary School Kirta which was issued by the Headmaster in which the date of birth of the prosecutrix was mentioned as 25.03.1988. The appellant was arrested on 05.03.2002 and he was also sent for his medical examination to Civil Hospital, Bemetara, where he was examined by PW-6, Dr. M.M. Deodhar, who opined that the appellant is able to perform coitus.

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3. The statement under section 161 of CrPC of the witnesses have been recorded. Seized clothes and slides were sent for MLC examination and after completion of investigation the charge sheet was filed in the court of Additional Chief Judicial Magistrate, Bemetara for the offence under Section 376 IPC. After committal of the case, the same was transferred to Additional Sessions Judge, Bemetara, District Durg, for its trial

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and ultimately the case was tried by the IIIrd Additional Sessions Judge (FTC) Bemetara, District Durg. The trial Court has framed charges against the appellant under Section 376 IPC. The appellant abjured his guilt, plead innocence and claimed trial.

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4. In order to establish the charge against the appellant, the prosecution examined 10 witnesses. The statement of appellant was also recorded under section 313 of CrPC in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case.

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5. After appreciation of the evidence adduced by the prosecution, the learned trial court has convicted the appellant and sentenced him as mentioned in para 1 of this judgment. Hence this appeal.

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6. Learned counsel for the appellant has argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 16 years of age. No any Kotwari register or ossification report was produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 16 years of age. Under the present facts and circumstances of the case, the prosecutrix was a consenting party as she has not raised any alarm while she was being taken by the appellant to the pit of

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Canal as alleged by her. No injuries were found on the body of the prosecutrix. Her evidence is not corroborated by any other independent witnesses who were present in nearby places. He further argued that had the prosecutrix been raised any hue and cry, the persons of nearby places would have certainly heard her noise and reached there in her rescue. Therefore, the possibility of false implication cannot be ruled out.

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7. On the other hand, learned counsel for the State opposes the arguments advanced by the counsel for the appellant and submits that in the form of certificate, Ex.P/5-C, the prosecution has proved the age of the prosecutrix that on the date of incident she was below 16 years of age and was minor. The prosecutrix was forcibly taken by the appellant on the pit near the canal and committed sexual intercourse against her will and consent. He would further submit that the evidence of the prosecutrix need not be corroborated in the offence of rape and on the sole testimony of the prosecutrix conviction can be held and therefore there is no need to interfere with the impugned judgment of conviction and sentence.

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8. I have heard the learned counsel for the parties and perused the records.

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9. With regard to age of the prosecutrix, the prosecution has relied upon a certificate, Ex.P/5-C, which is sought to be proved by PW-3, Ramkishun Mahilange, Assistant Teacher, Primary School Kirta, who has stated in his deposition that on being

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asked by the police, he prepared the said certificate and had given it to the police with respect to the age of the prosecutrix. According to said certificate, the date of birth of the victim was 25.03.1988. The certificate was issued on the basis of entry made in the school register. In cross examination, he admits that in the school register, the father’s name of Rangilal Soni was not written. He also states that he is unable to demonstrate that in the year 1994 any student in the name of prosecutrix had taken admission in the school. He admits that he has not obtained any document with respect to date of birth of the prosecutrix from her father. The father of the prosecutrix had not brought any birth certificate or horoscope of the prosecutrix at the time of her admission in the school. He further deposed that the father of the prosecutrix have disclosed her date of birth on gesture and on that basis the date of birth is recorded. He admits that his initial signature is not there in the school register.

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10. PW-1, the prosecutrix, PW2 & PW-4, the father & mother of the prosecutrix respectively, have neither stated any date of birth of the prosecutrix nor have they stated that the prosecutrix was minor on the date of incident. There is absolutely no statement to that effect in their deposition. Even they have not deposed in their deposition that they have given an intimation with respect to the date of birth of the prosecutrix to PW-3, Ramkishun Mahilange, Asstt. Teacher, at the time of her admission in the

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school. There is no other evidence available on record, like birth certificate, Kotwari register or ossification report. The only piece of evidence regarding age of the prosecutrix is the certificate Ex.P/5-C which is said to have been issued by the Assistant Teacher of the School.

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11. In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604 , the Hon’ble

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Supreme Court has held as under :

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“26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."

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12. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385 , the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer

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certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.

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13. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the

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Supreme Court has observed as under :

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“40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. ……..

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We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-

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"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

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14. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh

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& Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under :

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“33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

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33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with subsection (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

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XXXX XXXX XXX

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33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

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33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

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33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

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33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

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33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

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33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

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33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

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33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.

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33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.”

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15. Recently, in case of P. Yuvaprakash Vs. State represented by

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Inspector of Police, 2023 (SCC Online) SC 846, Hon’ble

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Supreme Court has held in para 14 to 17 as under :

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

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

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In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

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“20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (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. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.”

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Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

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“Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of

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2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

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In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.”

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16. In view of above stated legal proposition laid down by the Supreme Court and on the basis of the evidence adduced with regard to age of the prosecutrix, it cannot be safe to hold that on the date of incident the prosecutrix was less than 16 years of age and was minor because the only piece of evidence is the certificate Ex.P/5-C which is said to have been issued by the Assistant Teacher who has stated that on based on gesture the said date of birth was recorded by the father of the prosecutrix. Her parents have failed to disclose any date of birth. Even they failed to show that the prosecutrix was minor on the date of incident. Therefore, this court is of the opinion that the prosecution has failed to prove the fact that the prosecutrix was minor on the date of incident and less than 16 years of age.

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17. Now the second issue arises for consideration of this court is whether the appellant has committed forceful sexual intercourse with the prosecutrix or not?

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18. PW-1, the prosecutrix have stated in her deposition that on the date of incident she was guarding her backyard and on being called by the appellant she went near the appellant from where she was being taken by the appellant to the pit of a canal and the appellant did not do anything. Subsequently, she stated that the appellant has committed rape upon her. When her father came there, she disclosed the incident to her father and mother and went to the police station to lodge a report. In cross examination, she has stated that the appellant used to visit her grocery shop to purchase domestic articles and as such they know each other and often they used to talk. She has further stated that the appellant came to her backyard and caught hold her hand and by lifting her on his hand he has taken her from her backyard to a pit near canal. She admits that when she was being taken, she has not raised any hue and cry. She also admits that her hands were open, but she did not make any resistance to protect herself. She further admits that the way from where the appellant has taken her near canal is a public road and frequently visited by many villagers. At the time when she was guarding her backyard many persons were visiting there. She admits that she did not protest when the appellant was pressing her breast. The appellant opened the button of her shirt, however she did not raise any objection. She also admits that she did not raise any alarm even when the appellant removed her underwear. She states that after commission of

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intercourse the appellant wore his clothes and went away from the spot and five minutes thereafter the prosecutrix also left the place and went to her backyard.

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19. The manner in which they have proceeded cannot be said to be any forceful act of the appellant because in the entire process it appears from the evidence of the prosecutrix that she was a consenting party in the alleged commission of sexual intercourse. While committing sexual intercourse she has not tried to defend herself. It is not a case that the appellant has committed forceful sexual intercourse without her will or consent. The prosecutrix appears to be a consenting party.

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20. PW-2, the father of the prosecutrix, though have stated that his daughter has informed the incident, but in cross examination he has stated that when he went to his backyard and called her daughter but she did not answer. Thereafter, he saw the appellant and the prosecutrix fleeing away from that place. He saw her daughter in compromising position with the appellant, but this fact has not been disclosed before the police and first time disclosed before the court. He has stated that neither he asked from her daughter nor her daughter disclosed any fact about the incident to him. He denied the fact that he disclosed before the police that the appellant has committed rape upon his daughter and if written in his police statement, then the same is wrong.

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21. PW-4, the mother of the prosecutrix, have stated in her deposition that her Husband has called the prosecutrix from the backyard and on being asked by her, the prosecutrix disclosed the incident to her and thereafter her husband went to lodge a report. She admits that her husband has seen the appellant and prosecutrix sitting together and for that reason he shown his anger and taken her to his house. Her husband does not like the appellant. After lodging report, the prosecutrix came back to house along with her father.

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22. Close scrutiny of the evidence makes it clear that the appellant has not used any force while the alleged act is said to have been committed by him, but from the act and the conduct of the prosecutrix, as described in her cross examination, it clearly reflects that she was a consenting party on the alleged incident. Had she been raised any hue or cry, the persons of nearby places would certainly have come there to rescue her. No external or internal injuries were found on the body of the prosecutrix as has been stated by Dr. Smt. Rajshree Deoghar which is supported by her report, Ex.P/7.

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23. The law is well settled that in a case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the

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accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

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24. Considering the entire facts and circumstances of the case and also considering the evidence available on record with regard to age and the conduct of the prosecutrix, we are of the opinion that the prosecutrix was more than 16 years of age at the time of incident and further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, the offence under Section 376 IPC would not be made out against the appellant.

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25. In the result, the appeal is allowed. The judgment of conviction and order of sentence dated 20.12.2002 is set aside. The appellant is acquitted from charges framed against him. He is on bail. His bail bonds shall remain in operation for a further period of six months in view of provisions contained in Section 437-A CrPC.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Raju v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Raju v. State of Chhattisgarh

Case brief

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What did the court decide?

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