Kamesh Das @ Rinku Manikpuri Vs State of Chhattisgarh

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CRA No.1031 of 2021 Kamesh Das @ Rinku Manikpuri Versus State of Chhattisgarh

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1

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1031 of 2021

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Kamesh Das @ Rinku Manikpuri S/o Shri Aleshwar Manikpuri Aged About 19 Years R/o Village Nansiya, Out Post Jutemill, Police Station City Kotwali, District Raigarh Chhattisgarh

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---- Appellant

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Versus

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State Of Chhattisgarh Through Station House Officer, Of The Police Station Ajak Tahsil And District Raigarh Chhattisgarh

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---- Respondent

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For Appellant : Shri C.K. Kesharwani, Advocate For Respondent/State : Shri Ajay Kumrani, Panel Lawyer

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Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Smt. Justice Rajani Dubey

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Judgment on Board

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Per Goutam Bhaduri, J

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11/06/2024

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Heard.

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This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 08/09/2021 passed by the Additional Sessions Judge (F.T.C.), District Raigarh, C.G., in Special Criminal Case under the POCSO Act No.22/2021 whereby the appellant has been convicted and sentenced as under:-

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CRA No.1031 of 2021 Kamesh Das @ Rinku Manikpuri Versus State of Chhattisgarh 2

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Conviction		Sentence
Under Section 363 of the Indian Penal Code, 1860	R.I. for Seven Rs.1000/- and of fine three mo	Years and fine of in default of payment nths additional R.I.
Under Section 366 of the Indian Penal Code, 1860	R.I. for ten Rs.2000/- and of fine three mo	years and fine of in default of payment nths additional R.I.
Under Section 376 (2) (k) (n) of the Indian Penal Code, 1860	R.I. for ten Rs.15000/- and of fine six mont	years and fine of in default of payment hs additional R.I.
Under Section 6 of the POCSO Act.	R.I. for 20 Rs.25000/- and of fine six mont	Years and fine of in default of payment hs additional R.I.
Under Section 3 (1) (w) (ii) of the SC/ST (Prevention of Atrocities) Act.	R.I. for three Rs.1000/- and of fine three mo	years and fine of in default of payment nths additional R.I.
Under Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act.	Imprisonment Rs.15000/- in fine six months	for life, and fine of default of payment of additional R.I.
	All the se concurrently.	ntences shall run

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The case of the prosecution, in brief, is that a report was made on 05/02/2018 by the mother of the victim that her daughter whose date of birth is 17/07/2001 was missing since 04/02/2018 and some one has enticed away her girl. Subsequently, on the basis of the written report the FIR Ex. P/7 was registered. Thereafter, the victim was recovered on 06/02/2018 and initially her statement under Section 164 Cr.P.C. was recorded. Apart from the statement of the victim, the statement of the mother and father were also recorded. During the investigation the

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CRA No.1031 of 2021 Kamesh Das @ Rinku Manikpuri Versus State of Chhattisgarh

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Dakhilkharij Register and caste certificate were also recovered. The victim was subjected to medical examination and after the MLC the charge-sheet was filed.

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The appellant abjured his guilt during trial and claimed to be tried. The prosecution on its behalf examined as many as 10 witnesses and exhibited 17 documents. The learned trial Court after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal.

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Learned counsel for the appellant would submit that the victim though stated to be minor by the prosecution but actually she had already attained the majority on the date of incident. He would further submit that at the instance of the parents itself the age of the prosecutrix was shown to be 18 years as Ex. P/15. He would further submit that it was a case of consent and only because the appellant and the prosecutrix belong to the different caste, their marriage could not be performed and eventually a false report has been made. He would further submit that no positive opinion was given by the doctor about commission of rape while the victim was examined and the false allegations were attributed which the learned Sessions Judge failed to consider the same. He would further submit that though the Dakhilkharij register was produced but the author of the same was not examined, therefore, the prosecution has utterly failed to prove the case beyond reasonable doubt and under Section 164 Cr.P.C. the prosecutrix did not disclose commission of crime which would go to show that nothing happened to her. Even if the allegations are accepted it would go to show that they were in close proximity and the victim was major, therefore, no offence

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would be made out against the appellant and he prays that the judgment of conviction and order of sentence may be set aside.

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Per contra, learned State counsel would submit that the statement of the prosecutrix PW-1 would show that she was subjected to enticing on the false promises and she being minor, which is proved by Dakhilkharij register, as her date of birth was 17/07/2001, the consent would be immaterial. He would further submit that the very foundation of the prosecution case that the victim was recovered from the possession of the appellant would indicate towards the commission of crime and the statement of the prosecutrix clearly establishes that she was subjected to forceful sexual intercourse against her will. Therefore, the order of the learned Sessions Judge is well merited which do not call for any interference.

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We have heard learned counsel for the parties and perused the evidence.

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In order to ascertain the age, the statement of the prosecutrix and her mother AC (PW-2) would be relevant. The mother AC (PW-2) states that she was married while she was 19 years old and while she was examined before the Court her age was shown to be 37 years. It was further stated that after three years of her marriage the year 2000 when started the victim was born i.e. after three years of the marriage. She further states that the date of birth certificate was issued by the hospital, however, she had not given it to the police. To prove the age the dakhilkharij register and the admission particulars were produced as Ex. P/16 and Ex. P/17. Ex. P/16 pertains to the date of admission wherein

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she was admitted on 20/06/2006 and the date of birth was shown as 17/07/2001. Likewise in the dakhilkharij register the date of birth is shown as 17/07/2001. The mother AC (PW-2) has not categorically stated about her date of birth and the cross-examination would show that after three years of her marriage the child was born and after three years 2000 started. Since the date of incident was of 04/02/2018 the presumption would show that she was 18 years of age.

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In order to prove the age the prosecution relied upon the statement of BLP (PW-10). The statement of BLP (PW-10) would show that he was the headmaster who joined the School in the year 2005 and he is not the author of the dakhilkharij register.

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The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:-

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“14 This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth.

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“14…. The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value.”

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In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.”

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The document Ex. P/14 attached with the X-ray report conducted by the doctor is on record. The statement of the I.O. D.L.M (PW-7) would show that in order to ascertain the age of the victim the I.O. had sent the victim for medical examination and the medical report was received by Ex. P/14. In the report attached with Ex. P/14 the age of the prosecutrix is shown to be 18+1 years. The MLC of the victim Ex. P/11 which is proved by doctor DA (PW-3) would show that no injury was found and no positive opinion was given about the commission of rape. Perusal of MLC Ex. P/11 would show that reference was made for radiological test for confirmation of the age. The radiological confirmation report is not on record. Apart from the fact that the statement of the mother AC (PW-2) would show that she was in hold of the birth certificate but it

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was not handed over to the police. If certain documents are in possession of the parties and the same is not produced then the adverse inference is required to be drawn. Consequently, the prosecution when relied on the mark-sheet Ex. P/5 cannot be solely relied upon specially when the document which is produced by the prosecution itself shows that the age of the prosecutrix was 18+1 year approximately. It is not the case that the prosecutrix was medically examined after much delay of the recovery.

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The evidence of the mother AC (PW-2) would show that after the victim went missing the report was made immediately on 04/02/2018 and on 06/02/2018 (Ex. P/1) and after which she was recovered. The medical report shows that the victim was medically examined on 04/04/2018 which do not support the commission of offence of rape. What was the reason to withhold back to get the prosecutrix examined is not clear before us, however, the statement of the victim recorded on 06/02/2018 before the JMFC under Section 164 Cr.P.C. would show that she disclosed that because she was scolded by the parents she left the home and she has not disclosed the fact that she was forcefully enticed away under any coercion or any other promise.

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The over all presumption of the evidence, therefore, would show that inconsistent statements have been made by the prosecutrix and the proseuction itself has produced the document to show that the age of the prosecutrix was 18+1 year, we do not find any reason to disbelieve such document. It is a settled proposition that when 2-3 views came to fore and the victim herself comes out with categorical date of birth, the

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evidence which favours the accused is required to be admitted. This proposition has been been laid down in the matter of Kali Ram vs. State of H.P. reported in (1973) 2 SCC 808 and has been reiterated in the matter of Pradeep Kumar vs. State of Chhattisgarh reported in (2023) 5 SCC 350 wherein, relevant para-27 reads as under :-

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“27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.”

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Accordingly, we allow the appeal and set aside the impugned judgment dated 08/09/2021. Appellant stands acquitted of the charges leveled against him. Appellant is reported to be in jail, he be set at liberty forthwith if not required to be detained in any other case.

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SD/- SD/-

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(Goutam Bhaduri) (Rajani Dubey)

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Judge Judge

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Ashu

Kamesh Das @ Rinku Manikpuri v. State of Chhattisgarh

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Kamesh Das @ Rinku Manikpuri v. State of Chhattisgarh

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