Allowed

Pradeep Banjare v. State of Chhattisgarh

Chhattisgarh HC21 Aug 2024CRA/1434/2018

Case brief

AI extract

What is this about?

This Division Bench of the Chhattisgarh High Court allowed an appeal against a conviction under the POCSO Act and IPC for sexual offenses involving a prosecutrix. The Court found that the evidence proving the victim was a minor was insufficient, as the school register entry lacked foundational testimony and was subsequently deemed unreliable. Consequently, the Court found the appellant entitled to

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellant acquitted of all charges and ordered released forthwith.

Pradeep Banjare Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2024.08.30 17:45:51 +0530

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2024:CGHC:31958-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1434 of 2018

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(Arising out of judgment of conviction and order of sentence dated 21.08.2018 passed by the learned Additional Sessions Judge (FTC), District Korba (C.G.), in Special POCSO Case No.10/2017)

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Pradeep Banjare S/o Rajendra Banjare Aged About 23 Years R/o Village- Kotmi Sonar, Police Station- Akaltara, District- JanjgirChampa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through The Station House Officer, Police Station- Urga, Korba, District- Korba, Chhattisgarh., District : Korba, Chhattisgarh

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... Respondents

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For Appellant	: Mr. Sabyasachi Bhaduri, Advocate
For Respondent/State	: Mr. Arvind Dubey, Govt. Advocate

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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(22.08.2024)

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Sanjay Kumar Jaiswal, J.

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Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 21.08.2018 passed by the learned Additional Sessions Judge (FTC)/ Special Court under the Prevention of Children from Sexual Offences Act, 2012, District Korba (C.G.), in Special POCSO Case No.10/2017 by which he has been convicted for offence as under:-

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Conviction	Sentence & Fine
U/s. 4 of the POCSO Act, 2012	Imprisonment for life and to
as also U/s. 376(2)(n) of IPC.	pay fine of 300/-; in default ₹
[However, in light of Section 42	of payment of fine additional
of the POCSO Act,	rigorous imprisonment for 2
sentenced/punished only U/s. 376 (2)(n) of IPC]	months
U/s 384 of the IPC	Rigorous imprisonment for 3
	years and to pay fine of
	200/-; in default of payment ₹

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of fine, additional rigorous imprisonment for 1 month (both the sentences are directed to run concurrently)

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The facts of the case are briefly as follows that the prosecutrix (PW-1) went to Bhubaneswar, Odisha in 2015 to study B.Tech Computer Science. The appellant Pradeep Banjare was also studying B.Tech there. Both belong to the same community. Both the parties started talking on the phone. The prosecutrix's date of birth is 22/10/1998. On the alleged first incident on 22/08/2016, she was below 18 years of age and on the second incident on 09/03/2017, she was above 18 years of age. On the pretext of acquaintance, the appellant took the prosecutrix to Shubh Lakshmi Guest House on the pretext of giving her a gift and there he committed rape upon her. A video of the incident was made by him along with co-accused Vijay Yadav. Threatening to circulate that video, the appellant again went to the house of the prosecutrix and committed rape upon her on 09/03/2017. The appellant also started demanding Rs. 20,000/- from the prosecutrix. Later, the alleged video was sent via internet to the mobile phone of the prosecutrix's father (PW-4) by co-accused Vijay Yadav. Thereafter, on written report given by the prosecutrix,

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crime number 67/2017 was registered at Urga Police Station. The prosecutrix was medically examined. The prosecutrix's birth certificate and mutation register and phone were seized. The vaginal slide was prepared and sent for chemical examination. Statements of witnesses were recorded. Spot Maps were prepared. On completion of investigation, charge sheet was filed.

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During the course of trial, in order to bring home the of f ence, the prosecution has examined as many as 15 witnesses and exhibited 33 documents and seized 40 articles, which also included CDR. Statement of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication.

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After hearing both the parties, the trial court passed the impugned judgment of conviction and order of sentence.

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Under the above mentioned decision, the appellant Pradeep Banjare has been acquitted of the of f ences under Section 67 of the Information Technology Act and Section 11 (v) of the POCSO Act. Similarly, co-accused Vijay Yadav has been acquitted of the of f ences under Section 67 of the Information Technology Act, Section 11 (v) and Section 12 of the POCSO Act, giving them the benef i t of doubt.

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Learned counsel for the appellant submits that the prosecutrix was a consenting party. The prosecution has failed to prove that the prosecutrix was a minor being below 18 years of age at the time of the incident. The prosecution has failed to prove that the prosecutrix has been threatened by the appellant to obtain any valuable property. The appellant has been falsely implicated. The prosecution has failed to prove its case. The statement of the prosecutrix is contradictory. No reason has been given for the delayed report. Thus, the conviction of the appellant has been made mechanically which is not based on legal evidence. Therefore, the appeal may be allowed and the decision in question may be set aside and the Appellant may be acquitted.

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On the other hand, learned counsel for the State submits that the conclusion given by the trial Court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed.

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We have heard learned counsel appearing for the parties and perused the available record with utmost

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circumspection.

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Before looking at the statement of the prosecutrix, it would be appropriate to look at the medical evidence. Dr. Sujata Shrivastava (PW-9) has stated that she conducted a medical examination of the prosecutrix on 17/03/2017 and submitted a report (Exhibit P-20), according to which, no injury marks were found on the body of the prosecutrix. She was habitual to sexual intercourse. According to the report of her vaginal slide which was sent to FSL, no human sperm was found in it.

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The rape incidents are said to have taken place on 22/08/2016 and 09/03/2017, whereas the police report was lodged on 17/03/2017, i.e. about 08 days after the second incident. Even in such a situation, the case of the prosecution is doubtful and not corroborated by medical evidence, which requires a careful review of the statement of the prosecutrix.

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The prosecutrix (PW-1) has stated in her Court statement that she is a resident of Village Semipali, Urga and used to stay in a hostel while studying in Bhubaneswar. The appellant contacted her over phone. Thereafter, the conversation began. In July, 2016, the appellant asked her

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to come and meet him, but she refused. On 22/08/2016, when she had gone out with her friend, the appellant called her and asked her to come and meet him in front of Big Bazaar, otherwise he threatened to drag her away. When she reached Big Bazaar, he took her in an auto to Shubh Lakshmi Guest House and told her that he would give her a surprise gift on her birthday. When she felt thirsty, the appellant brought a bottle of water for her. Thereafter, he locked the room door from inside. When she started feeling dizzy, the appellant forcefully had sexual intercourse with her and then dropped her back to the hostel in the evening. At 9:00 pm, he sent a video of the sexual intercourse. Later, threatening to circulate that video, he started calling her again and started beating her. In March, 2017, she came to her home in village Semipali, then again the appellant called her and threatened her to come and meet him otherwise he would send the video of their physical relation to her father. Then on 09/03/2017, the appellant came to her house when her parents were not at home and there he forcibly had physical relation with her. Then on 10/03/2017, he called her and demanded Rs. 20,000/- otherwise he threatened to send the video to her father. Thereafter, she narrated the entire incident to her father, then on 17/03/2017, she gave a written complaint to the police vide

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Exhibit P-1.

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The prosecutrix has admitted in her crossexamination that in the written complaint she had given to the police, she had not mentioned any allegation against coaccused Vijay Yadav. She has also admitted that for the first time she had gone to Shubh Lakshmi Guest House with the appellant on his invitation. There is no evidence that the prosecutrix had opposed the appellant. Even if the appellant had mixed something in the water and made her drink it and she had started feeling dizzy, she could have reported the matter to the police after the first incident on 22/08/2016, but she did not report the matter to the police. She did not tell any of her family members about the threat of circulating the video for about 07 months. Whereas the first incident was on 22/08/2016 and the prosecutrix reported the matter on 17/03/2017. The report also appears to have been filed when the video of the physical relationship of the prosecutrix had reached her father. It is also evident from the written report Exhibit P-1 that the appellant is also a resident of village Kotmisonaar, District-Janjgir Champa, near the residence of the prosecutrix. Being from the same community, both of them started liking each other. It is said that the WhatsApp

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message of the alleged physical relationship was sent on the mobile phone of the prosecutrix's father by co-accused Vijay Yadav. It is evident from this that the prosecutrix herself did not give any information about the incident to her family for about 07 months after the first incident dated 22/08/2016, whereas the second time, the appellant had physical relationship with her at her residence in village Semipali. Both the parties belong to the same community and are residents of nearby villages and both had gone to Bhubaneswar, Odisha for studies. It is reflected from this that both the parties were known to each other for a long time and they used to talk on the phone for a long time. On the basis of this introduction, the prosecutrix went with the appellant when he called her and despite having physical relations, she never complained till the second incident. The report was filed after the second incident when the video of their physical relation was circulated and reached her father. Considering all these facts, the prosecutrix is found to be a consenting party in the case and for this reason her statement that the appellant had received money by threatening to circulate the video is not found to be reliable and acceptable. In such a situation, the commission of the offence under section 384 of the Indian Penal Code is not proved.

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The offences for which the appellant is convicted under Section 4 of the POCSO Act and Section 376 (2) (n) of the Indian Penal Code will be proved if the prosecution proves beyond doubt that the age of the prosecutrix was below 18 years on the date of the incident i.e. 22/08/2016 and she was a minor. Since the prosecutrix has been found to be a consenting party, in such a situation, the burden of proof for the said offences is on the prosecution to prove that the prosecutrix was below 18 years on 22/08/2016.

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If we consider the evidence presented on the point of determination of age, the prosecutrix has stated her date of birth as 22/10/1998, which has been confirmed by her father (PW-4). In this regard, the police has seized the school's admission register, Exhibit P-19/C, and the school's head teacher Sonam Ram (PW-8) has confirmed it in her evidence and said that she is the head teacher in the primary school Urga, District Korba, and according to the admission register, Exhibit P-19/C, the date of birth of the prosecutrix is recorded as 22/10/1998. In such a situation, on calculation, the age of the complainant on the first incident, date 22/08/2016, is about 17 years and 10 months. On the second incident, date 09/03/2017, the age of the complainant is about 18 years and 05 months. Since

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the prosecutrix has been found to be a consenting party, the incident stated on 09/03/2017 does not fall in the category of rape. As far as this is concerned, it would be appropriate to evaluate the evidence presented in relation to the incident of 22/08/2016.

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The Supreme Court in the matter of Manak Chand alias Mani v. 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

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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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16. Hon’ble the Apex Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has held that:-

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“the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 35 of the

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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 the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case that the date of birth mentioned in the transfer 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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Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 has held that:-

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“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 to 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

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material on which the age was recorded.”

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How, dakhil-kharij register is treated to be relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another (2008) 13 SCC 133, wherein it has been held as under:-

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“22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.

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It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially 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

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evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See: Birad Mal Singhvi v. Anand Purohit (1997) 4 SCC 24).”

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The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:-

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“26. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.

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On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.”

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If we review the evidence presented by the prosecution

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in the context of the above judgment, then the head teacher Sonam Ram (PW-8) has not said that the entry regarding

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the admission of the prosecutrix in the primary school, Urga's Dakhil Kharij register Exhibit P-19/C was written by her, that is, the entry was made by someone else, which has not been examined before the Court. Head teacher Sonam Ram has also admitted in his cross-examination that there is a deletion in the name of father of the prosecutrix. She has also accepted that "Dahriya" is not written before the name of the prosecutrix. She has also accepted that she cannot tell who came to the school to get the prosecutrix admitted. This makes it clear that the examined head teacher Sonam Ram has failed to tell on what basis the date of birth of the prosecutrix was written as 22/10/1998 at the time of admission in the school. This witness has also accepted that the Kotwari register or any other document regarding the date of birth of the prosecutrix was not given along with the Dakhil Kharij register. In this situation, when the prosecutrix was about 18 years of age at the time of the incident, in the absence of clear and reliable evidence, the said date of birth entry cannot be considered as conclusive evidence.

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In view of above, when the prosecutrix is not proved to be a minor and she is found to be a consenting party, then the prosecution case against the appellant is not found to

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be proved and the conviction and sentence of the appellant is not upheld.

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In view of the aforesaid discussion and in light of the above referred judgments, the appeal is allowed and the impugned judgment dated 21/08/2018 (Annexure A-1) passed by the trial Court convicting and sentencing the appellant for the offence as mentioned in paragraph 1 of this judgment, is hereby set aside by giving him the benefit of doubt. The appellant is acquitted of the charges leveled against him.

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The Appellant is in jail, he be released forthwith if not required to be detained in any other case/s.

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Let a certif i ed copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary action, if any. A certif i ed copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suf f ering the jail sentence.

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Sd/Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Shubham

Pradeep Banjare v. State of Chhattisgarh

Case brief

What is this about?

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Pradeep Banjare v. State of Chhattisgarh

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