Allowed

Jashwant Ekka v. State of Chhattisgarh

Chhattisgarh HC11 Jun 2024CRA/1655/2021

Case brief

AI extract

What is this about?

In an appeal against conviction for offences under the POCSO Act and IPC, the High Court acquitted the appellant. The Court held that the prosecution failed to prove the victim's age beyond reasonable doubt as the relied-upon school entry was based on presumption due to absence of a birth certificate, and thus the benefit of doubt favoured the accused.

What did the court decide?

Impugned judgment dated 27/02/2021 set aside; appellant acquitted and granted liberty forthwith.

Jashwant Ekka Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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CRA No.1655 of 2021 Jashwant Ekka Versus State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1655 of 2021

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Jashwant Ekka S/o Sudarshan Ekka Aged About 20 Years R/o Village - Kunmera Khalpara, Police Station - Sitapur, District- Sarguja (Chhattisgarh)

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---- Appellant

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Versus

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State of Chhattisgarh Through - Police Station - Bagbahaar, District - Jashpur (Chhattisgarh)

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---- Respondent

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For Appellant	: Ms.	Ranjana Jaiswal, Advocate
For Respondent/State	: Shri	Atanu Ghosh, Dy. GA

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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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12/06/2024

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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 27/02/2021 passed by the Additional Sessions Judge and Special Judge (Protection of Children from Sexual Offences Act, 2012) Paththalgaon, District Jashpur, C.G. in Special Criminal Case No.03/2020 whereby the appellant has been convicted and sentenced as under:-

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2	*Jash*	*want Ekk*	C *a Versus S*	*RA No.1655 of 2021* *tate of Chhattisgarh*
Conviction			Sente	nce
Under Section 363 of the Indian Penal Code, 1860	R.I. for Rs.100/- fine Six	Three and in months	Years default additio	and fine of of payment of nal R.I.
Under Section 366 (A) of the Indian Penal Code, 1860	R.I. for Rs.500/- fine six	Five and in months	years default addition	and fine of of payment of al R.I.
Under Section 376 (2) (I) (N) of the Indian Penal Code, 1860 and Section 6 of the POCSO Act	R.I. for fine of R of paym additiona	Twen s.1000 ent of l R.I.	ty-Twen - 1000/- fine on	ty years and and in default e – one Years
	All th concurre	e se ntly.	ntences	shall run

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The case of the prosecution, in brief, is that the father of the victim VS (PW-2) lodged a report on 30/06/2020 that his daughter, who is aged about 15 Years, is missing from 25/06/2020 and the doubt was raised over the appellant that he has enticed away the minor girl for sexual favour. Subsequently, the victim was recovered from the possession of the appellant on 01/07/2020. Thereafter, her statement was recorded in which she revealed that on the pretext of marriage she was enticed away from the lawful custody of her parents and the appellant committed the sexual intercourse. The victim PW-1 was examined by the doctor and thereafter the POCSO Act was added and the chargesheet 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 14 witnesses and exhibited 40 documents. The learned trial Court after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal.

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CRA No.1655 of 2021 Jashwant Ekka Versus State of Chhattisgarh

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Learned counsel for the appellant would submit that the prosecution has failed to prove the age of the victim that she was a minor on the date of incident i.e. on 25/06/2020. She would further submit that the statement of the father VS (PW-2) would show that no specific date of birth of the victim has been stated. She would further submit that the father disclosed the date of birth of the victim to be 06/12/2000, in such case, the victim was aged about 20 years on the date of incident and the statement of the victim PW-1 would show that she was a consenting party during the entire incident. She would further submit that the Dakhilkharij Register Ex. P/20 (C) though was produced but the author of the said document U Y (PW-7) categorically stated that he has entered the date of birth of the victim on the basis of presumption only because in respect of date of birth of the victim no certificate has been produced. She would further submit that in view of the statement would show that the victim being a major was herself in the company of the appellant as such the finding of the learned Sessions Judge cannot be sustained, when it is corroborated by the statement of the doctor which do not affirm the commission of sexual offence. Therefore, no offence would be made out against the appellant and she prays that the judgment of conviction and order of sentence may be set aside and the appellant may be released by allowing the appeal.

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Per contra, learned State counsel would submit that the prosecution has proved the age of the victim to be below 18 years by producing the Dakhilkharij Register as also the statement of the prosecutrix wherein she stated that her date of birth is 12/06/2005 and the alleged incident

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CRA No.1655 of 2021 Jashwant Ekka Versus State of Chhattisgarh

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since was stated to be in the year 2020 at that time she was below the age of 18 years and therefore, would be within the meaning of POCSO. He would further submit that the statement of the victim PW-1 would further show that on the pretext of marriage the sexual exploitation was committed despite the fact that the victim is a minor. Accordingly, 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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The primary question which comes to fore for adjudication is that as to whether the victim was minor or major on the date of incident?

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According to the victim PW-1 she states that her date of birth is 12/06/2005 which is also shown in the Dakhilkharij Register Ex. P/20 (C). The statement of U Y (PW-7) the Headmaster would show that at the time of admission no birth certificate was produced to establish her date of birth and the date of birth was written on the basis of presumption, therefore, much weightage cannot be given to the date of birth which the prosecutrix deposed as it was based on Dakhilkharij Register especially when the father has been examined as PW-2.

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The father VS (PW-2) states that at the time of admission of the victim in the school no birth certificate was given and the date of birth was written only on presumption which is corroborated by the statement of U Y (PW-7). During the cross-examination of this witness having specifically asked as to what is the date of birth of his daughter, he stated that as per his knowledge the date of birth is 06/12/2000. He

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CRA No.1655 of 2021 Jashwant Ekka Versus State of Chhattisgarh

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further states that the report was lodged because of the fact that his daughter left the house without informing anyone.

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In view of the facts of this case it appears that the actual date of birth of the victim has not been proved and the reliance is placed only on the Dakhilkharij register Ex. P/20 (C).

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That, in the instant case the father VS (PW-2) has categorically deposed in his statement that he is not precisely aware of the date of birth and date of birth has been recorded on surmise the same was admitted by the teacher U Y (PW-7). Therefore it is very hard to assume the date of birth in such circumstances as the Dhakhil Kharij register cannot be believed without corroboration. The Supreme Court in the matter of Madan Mohan Singh and others v. Rajni Kant and Another {(2010) 9 SCC 209} has held that the Dakhilkharij register has a probative value which may be required to be examined from facts & circumstances of a particular case. The Court has held thus in para 18, 20 & 21 which are reproduced hereinbelow:-

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Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar [(1969) 2 SCC 359 : AIR 1970 SC 326] , Ram Murti v. State of Haryana [(1970) 3 SCC 21 : 1970 SCC (Cri) 371 : AIR 1970 SC 1029] , Dayaram v. Dawalatshah [(1971) 1 SCC 358 : AIR 1971 SC 681] , Harpal Singh v. State of H.P. [(1981) 1 SCC 560 : 1981 SCC (Cri) 208 : AIR 1981 SC 361] , Ravinder Singh Gorkhi v. State of U.P. [(2006) 5 SCC 584 : (2006) 2 SCC (Cri) 632] , Babloo Pasi v. State of Jharkhand [(2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266] , Desh Raj v. Bodh

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CRA No.1655 of 2021 Jashwant Ekka Versus State of Chhattisgarh

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Raj [(2008) 2 SCC 186 : AIR 2008 SC 632] and Ram Suresh Singh v. Prabhat Singh [(2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194] . In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.

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So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

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For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents . In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [AIR 1965 SC 282] , Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC 604 : AIR 1988 SC 1796] , Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] and Satpal Singh v. State of Haryana [(2010) 8 SCC 714 : JT (2010) 7 SC 500] .)

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Now coming back to the statement of the victim PW-1 which would show that she on her own was in the company of the appellant and on various intervening period she stayed in the house of the relative of the appellant, therefore, apparently it would show that she was a consenting party. Apart from the fact that about the sexual intercourse in the

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CRA No.1655 of 2021 Jashwant Ekka Versus State of Chhattisgarh

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medical report it is opined that no injury was found when the victim was examined and no definite opinion was given about the commission of rape as the medical examination of the victim was done after considerable period.

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Primarily if the age of the victim was not proved beyond the reasonable doubt the entire reliance cannot be placed on the basis of the mark-sheet as the date of birth was borrowed from the Dakhilkharij register. The statement of the victim PW-1 would show that she was a consenting party and according to the doctor no definite opinion was given about the commission of rape furthermore the statement of the doctor AM (PW-9) speaks that the victim was habituated to sexual intercourse specially when the father has come out with the statement that the date of birth of his daughter is 06/12/2000 then in such case the benefit of doubt has to lean in favour of the appellant to hold that the prosecution was not able to prove the date of birth of the victim below 18 years apart from the fact that the statement of the victim PW-1 would show that she was a consenting party.

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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 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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CRA No.1655 of 2021 Jashwant Ekka Versus State of Chhattisgarh

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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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Applying the aforesaid well settled principles of law and for the reasons stated hereinabove, we allow the appeal and set aside the impugned judgment dated 27/02/2021. 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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In the result, the appeal is allowed.

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SDSD/- SD/-

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(Goutam Bhaduri) (Rajani Dubey) Judge Judge

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Ashu

Jashwant Ekka v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jashwant Ekka v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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