1 - Nand Kumar Dhanendra S/o Ramadhar Dhanendra Aged About 22 Years R/o Village Chipda, Police Station Dondilohara, District Balod Chhattisgarh, District : Balod, Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through Station House Officer, Police Station Dondilohara, District Balod Chhattisgarh, District : Balod, Chhattisgarh

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... Respondent

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For Petitioners : Shri Anil Gulati, Advocate For Respondent : Shri Ajit Singh, GA

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(Hon’ble Shri Justice Arvind Kumar Verma)

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Order on Board

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12/08/2024

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This appeal is directed against the impugned judgment of conviction and order of sentence dated 30.12.2017 passed by the learned Sessions Judge (FTC), Balod, District Balod (CG) in Special

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Criminal Case POCSO No. 55/2016 whereby and whereunder the appellants have been held guilty for the commission of offence as described below:

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Conviction	Sentence
U/s. 366 IPC	RI for 3 years and fine of Rs. 500/- in default of paymento f fine to further undergo RI for one month
U/s. 376(2) IPC and Section 5	RI for 10 years and fine of Rs.
(B)/6 of the Protection of Children from Sexual Offences Act	1500/- in default of payment of fine to further undergo RI for 6 months
Both the sentences are di	rected to run concurrently.

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Case of the prosecution in brief is that on 04.04.2016, uncle of the prosecutrix has lodged missing report at police station Doundilohara which has been registered as Crime No. 96/2016 under Section 363 IPC alleging that the victim/prosecutrix was residing in the house of her maternal uncle and pursuing her studies. The prosecutrix was known to the appellant since she was in class 8 and later on developed love affair between them, they exchange the mobile number and the appellant proposed her for marriage. It is alleged that on 02.04.2016, the appellant allured the prosecutrix from Rajnandgaon to Nagpur where they stayed at the house of his sister and after staying for three days, they went to Karimnagar where villagers of the prosecutrix were working and the appellant worked as labour and there the appellant developed physical relations with the prosecutrix and on 09.05.2016, the police recovered the prosecutrix from the

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custody of the appellant. Statements of the witneses were recorded, the prosecutrix and the appellant were medically examined, appellant was arrested and the seized articles were sent for chemical examination to FSL and during investigation, the trial court framed charges against the appellant under Sections 363,366, 366(a) and 376 IPC and Sections 4, 5 (B)/6 of the POCSO Act. The appellant abjured his guilt and pleaded innocence.

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In order to establish the charge against the appellants, the prosecution examined as many as 11 witnesses. The statement of the appellant under Section 313 of CrPC were also recorded in which he denied the material appearing against hims and stated that he is innocent and has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 6. Learned counsel for the appellant would submit that the appellant is innocent and he has been falsely implicated in the case. The prosecution has failed to prove its case beyond reasonable doubt. He further submits that the age of the victim has not been proved as per law. The prosecutrix is fully grown up and major having engaged in making consensual physical relation with the appellant. He submits that the prosecution has failed to prove the age of the prosecutrix to be below 18 years. He submits that the prosecutrix has not offered any protest or resistance and thus she was a consenting party. He next

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submits that the maternal uncle of the prosecutrix in whose lawful guardianship the prosecutrix was residing, has stated the date of birth of the prosecutrix is 16.10.2000 but the author of the school admission and discharge register itself was doubtful, therefore the same does not become reliable only because it has been entered in the school register. He submits that the ossification test of the prosecutrix was not conducted with regard to her age. He has placed his reliance upon the judgments of the Supreme Court in the matters of Sunil Vs. State of Haryana (2010) 1 SCC 742 ; Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 ,; Ram Vijay Singh Vs. State of Uttar Pradesh (2017) 2 SCC 210.

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5 . On the other hand, learned State counsel submits that the prosecutrix has proved its case beyond reasonable doubt. The prosecutrix has fully supported her case and her evidence need not be required to be corroborated by other evidence. Her evidence is sufficient to hold the appellant guilty for the said offence. He submits that the lady doctor has referred the prosecutrix to the radiologist for ossification test. He further submits that if she is being engaged in making consensual physical relation with the appellant, she might not have given statement against him and therefore, the learned trial Court has rightly convicted the appellant and the impugned judgment of conviction and sentence needs no interference.

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Heard counsel for the parties and perused the material available on record with utmost circumspection.

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Prosecutrix (PW-1) has stated that the she used to reside with her uncle and was pursuing her studies. The appellant was residing in front of their house at village Chipra. In the year 2015, the appellant proposed her and if she will refuse then he will die by cutting his wrist. She has further stated that the appellant annoyed her that he will take her away and in the month of May, he allured her and took her to Nagpur where they stayed at the house of his sister for 2-3 weeks where they developed physical relations. During that period, father and uncle of the appellant came there in search of them therefore they left for Karimnagar Hyderabad where relatives of his sister were residing and they stayed for 4-5 weeks and here also the appellant had developed physical relation with her. The police from Dondilohara came along with her uncle and she was recovered from the custody of the appellant. She was medically examined and her underwear was seized vide Ex.P-2. She has stated that her date of birth is 16.10.2000 and the certificate has been seized by the police vide Ex.P-3 and her statement was recorded vide Ex.P-4.

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Patiram Kamle (PW-2) maternal uncle of the prosecutrix has stated that she was his niece and her date of birth is 16.10.2000. On the date of incident, he along with his wife went to labour work and his niece went to the school. In the evening when he returned from his workplace, they did not find her and on asked her classmates and the relatives in the village, he did not find her therefore he lodged a missing report at police station Dondilohara on the basis of which FIR

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Ex.P-7 was lodged against unknown person. Her marksheet of class 8 was seized by the police vide Ex.P-8. After recovery of the prosecutrix and taking consent from him, she was medically examined and vaginal slides were prepared vide Ex.P-9. He has stated that 18-20 days after lodging of the missing report, she was recovered along with the appellant from Karimnagar, Hyderabad. She has disclosed that the appelant had developed physical relations with her.

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Dr. Smt. Renuka Prasanno (PW-5) is the lady doctor who had medically examined the prosecutrix and gave her report Ex.P-12. She has opined that there was no recent injury seen of sexual intercourse and no definite opinion could be given until receiving of chemical examination report.

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PW-6 Dr. S.L.Oika has medically examined the appellant and opined that the appellant is capable of performing sexual intercourse. (PW-7) Kamta Prasad Thakur is the headmaster of the Primary School Police Station Chipra, Dondilohara, District Balod(CG). She has deposed that vide seizure memo Ex.P-16, the school admission and discharge register Ex.P-10 was seized in which the date of birth of the prosecutrix is mentioned as 16.10.2000. In cross-examination he has stated that he is not the author of the entry made in the school admission and discharge register.

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The first contention of the counsel for the appellant is that the age of the victim has not been proved as per law.

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After going through the records, the deposition of the witnesses, statement of the headmaster, the school admission and discharge register in which the date of birth of the prosecutrix has been got entered in the school by the maternal uncle as 16.10.2000. The author of the school admission register has not been examined.

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Determination of the age of a prosecutrix under the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as the “POCSO”) has been considered by the Supreme Court in Mahadeo Vs. State of Maharashtra and Anr – (2013) 14 SCC 637 wherein, the Supreme Court has laid down that :

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“the date given in the matriculation or equivalent certificate must first of all be considered for the purpose of determining the age of the prosecutrix on the date of offence and, if that is not available, other means of determining the age of prosecutrix must be resorted to. While laying down this proposition, the Supreme Court took inspiration from rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (referred hereinafter as “Rules of 2007”). The said rule provided various means of assessing the age of a juvenile in conflict with law.

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The Supreme Court applied the same parameters for determining the age of a prosecutrix under the POCSO. Under rule 12(3) of the Rules of 2007, the age determination inquiry shall obtain evidence relating to the age of the juvenile firstly, from the matriculation or equivalent certificates if available [r. 12(3)(a)(i)] and in its absence, the date of birth certificate from the school first attended (other than a play

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school) [r. 12(3)(a)(ii)], and in its absence, the birth certificate given by a municipality, corporation or a panchayat [r. 12(3)(a)(iii)].

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Thereafter, the Supreme Court refers to rule 12(3)(b) and opines that it is only in the absence of any of the means provided in rr. 12(3)(a) (i) to (iii), that medical opinion could be sought to determine the age of the juvenile. Thereafter, the Supreme Court applies the same standard to determine the age of the prosecutrix under POCSO.

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The question before this Court is whether the judgment of the Supreme Court in Mahadeo supra binds all inferior Courts to accept the date of birth of the prosecutrix as entered in the school register as an indelible fact, prohibiting any enquiry into the reliability of such an entry? In Haryana Financial Corporation and anr., Vs.Jagdamba Oil Mills and Anr – (2002) 3 SCC 496, the Supreme Court held in paragraph 19 that judgements are not to be interpreted as statutes and the observations of the Courts are not to be assigned the mathematical rigidness of a Euclid’s theorem. The observations of the Court are to be understood in the backdrop of the facts in which the judgment was passed.”

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A plain reading of the judgment in Mahadeo (supra) reveals that the Supreme Court had to borrow the means of determining the age of the prosecutrix from the provisions of r.12(3) (i) to (iii) of the Rules 8 of 2007, on account of the absence of an analogous provision in the POCSO. However, the Supreme Court never intended its opinion to forbid an enquiry by the Courts into the reliability of the date of birth of the prosecutrix, as entered in the school register. Such a view is further sustainable in the light of stringent and draconian provisions in the POCSO which require that the enquiry by the Court to ascertain the guilt of an accused under the provisions of the POCSO should be detailed and intense to ensure that there is no miscarriage of justice by

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convicting an innocent or acquitting the guilty. The judgment does not require that the Courts consider the date of birth of the prosecutrix entered in the school register as gospel truth.”

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It is undisputed that the author of the school admission and discharge register has not been examined. There are two sources of information relating to the date of birth of the student entered in the school register. First source of information is the birth certificate of the child issued by the Municipality, Corporation, or the Panchayat or any such other local authority/body, which itself is based upon the certificate given by the hospital where the child was born. The second source of information is the date of birth of the child as given by the parent/guardian. Where the source of information relating to the date of birth of the child/prosecutrix is the statement of the parent/guardian, the Court must satisfy itself that such parent/guardian has affirmatively stated so in his or her testimony.

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The Supreme Court in the matter of State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny (2017) 2 SCC 1: (AIR 2017 SC 463) has held that:-

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"It is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to

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adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood.

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As regards the appreciation of a minor victim's testimony, it has been held thus:-

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"By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analyzed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well."

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The settled proposition of law is that even statement of victim in a case of rape has to be critically appreciated with utmost sensitivity keeping in view the broader probability of the incident. It is understood when a self respected woman like the victim would come forward in a Court to make a humiliating statement against her honour such as is involved in the commission of rape on her it is beyond of imagination that parents of the victim would manufacture a false case at the cast of assassinating the character of their own daughter though victim was a minor girl but in any rate she is

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woman with all attributes showing modest to her.”

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Another contention of the appellant is that the prosecutrix was a consenting party- In the present case, where the prosecutrix is minor, then consent is immaterial. Since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment. The first thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause 6 of Section 375 IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows:

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"375. Rape.--A man is said to commit„ rape‟ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions--

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*** Sixthly.--With or without her consent, when she is under sixteen years of age.

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Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."

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The legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but

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less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so- called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.

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Once if the things are put in right perspective in the manner stated above, we have to treat it as a case where the appellant has committed rape of a minor girl which is regarded as a heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as a mitigating circumstance, it may lead to disastrous consequences. This view gets strengthened when it is kept in mind the letter and spirit behind the Protection of Children from Sexual Offences Act, 2012."

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In view of the grounds urged above, it would be helpful to refer the law elucidated by the Hon'ble Supreme Court as regards the appreciation of evidence of the victim as well as minor victim, in cases

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where the accused is charged with the offence of rape/penetrative sexual assault.

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In view of the above observation and for the reasons stated above, the fact that the appellant has been identified by the prosecutrix hence, I find no fault or irregularity in the order of Addl. Sessions Judge and I am not inclined to interfere with the impugned judgment of conviction and order of sentence dated 30.12.2017. The appeal lacks merit and is accordingly dismissed. The conviction of the appellant under Sections 366 and 376 (2) IPC and Sections 4, 5 (B)/6 of the of the Protection of Children from Sexual Offences Act, 2012 are hereby maintained. Being already inside the jail, no order in respect of arrest etc. of the accused/appellant is required.

Sd/-

(Arvind Kumar Verma)

Judge

Digitally signed by SUGUNA SUGUNA DUBEY DUBEY Date: 2024.10.16 01:36:55 -0400

Nand Kumar Dhanendra v. State of Chhattisgarh

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Nand Kumar Dhanendra v. State of Chhattisgarh

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