Allowed

Sanjay Juri v. State of Chhattisgarh

Chhattisgarh HC23 Oct 2024CRA/405/2020

Case brief

AI extract

What is this about?

Appeal against conviction under Sections 450, 376(2)(n), 376(3) and 506(Part-II) IPC for sexual relations with a schoolgirl over several years. Relying on Supreme Court rulings on evidentiary value of school-register date-of-birth entries, the Court found her age unproved and conduct indicating consent, and acquitted the appellant.

What did the court decide?

Conviction and sentences under Sections 450, 376(2)(n), 376(3) and 506(Part-II) IPC set aside; appellant acquitted and ordered released forthwith on bail bonds.

Sanjay Juri Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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2024:CGHC:42019-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment Reserved on 21/10/2024 Judgment Passed on 24/10/2024

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CRA No. 405 of 2020

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Sanjay Juri S/o Pattar Singh Jurri Aged About 24 Years R/o Village Albelapara, Devgaon, P.S. Narharpur, District North Bastar Kanker, Chhattisgarh.

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... Appellant

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versus

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State of Chhattisgarh, Through: Police Station Narharpur, District North Bastar Kanker, Chhattisgarh.

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... Respondent

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For Appellant	:-	Mr. Rudra Nath Mukherjee,
		Advocate/Panel Lawyer appointed
		through High Court of Chhattisgarh
		Legal Aid Committee.
For State-Respondent	:-	Mr. Sanjeev Pandey, Dy. A.G.

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Hon'ble Smt. Justice Rajani Dubey Hon'ble Shri Justice Sanjay Kumar Jaiswal

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C.A.V. Judgment

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Sanjay Kumar Jaiswal, J.

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1 . This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated

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Digitally signed by HEERA LAL SAHU Date: 2024.10.24 13:03:58 +0530

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24.12.2019, passed by learned Additional Sessions Judge (FTC) and Special Judge (POCSO Act), North Bastar Kanker (C.G.) in Special Criminal Case (POCSO Act) No. 33/2019, whereby the appellant has been convicted and sentenced as under:-

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	Conviction	Sen	tence
		Rigorous imprison	ment for 10 years
U/s	450 of IPC	and fine of Rs. 5 payment of fine rigorous imprisonm	,000/- in default of amount additional ent for six months
U/s	376 (2)(n) of IPC	Rigorous imprison and fine of Rs. 50 payment of fine rigorous imprisonm	ment for 20 years ,000/- in default of amount additional ent for oneyear
		Rigorous imprison	ment for 20 years
U/s	376 (3)of IPC	and fine of Rs. 50 payment of fine rigorous imprisonm	,000/- in default of amount additional ent for oneyear
		Rigorous imprison	ment for 7 years and
U/s	506 (Part-II) of	fine of Rs. 5,00	0/- in default of
IPC		payment of fine rigorous imprisonm	amount additional ent for four months

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(All the sentences were directed to run concurrently).

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2 . The case of the prosecution, in short, is that on 30.06.2019 at about 9:30 pm, the prosecutrix lodged a written complaint (Ex.P-1) against the appellant, wherein it was stated that the appellant, who is her neighbour, used to outrage her modesty by threatening her. On 06.10.2015, the appellant for the first time, came to the house of the prosecutrix and outraged her modesty. After that, the appellant continues to have frequently made physical relationships with the prosecutrix. On 13.06.2019 at about 10:00 pm., the appellant called the prosecutrix from the

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backyard of her house hearing which she went to attend him, where again the appellant made a physical relationship with her. On 30.06.2019, the prosecutrix narrated the incident to her family members and then they went to the police station and lodged a report. Based on the written report, the FIR was lodged vide Ex.P-2. During the course of investigation, spot map was prepared vide Ex. P- 5. After obtaining consent vide Ex.P-3 from the prosecutrix, he was medically examined vide Exs. P23 & P-24. In the Court of Judicial Magistrate First Class, Bhanupratappur, the statement of the prosecutrix was recorded vide Ex.P-4. Seizures were made vide Exs. P-10, 11, 19, 20 & 35 respectively. On finding prima facie crime against the accused, he was arrested vide Ex.P-33 and he was also medically examined vide Exs.P-21 & 22. Statements of the witnesses were recorded. Seized articles were sent for chemical examination to FSL and FSL report was obtained vide Ex.P-25. After completion of the investigation, charge sheet was filed against the appellant.

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3 . During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 43 documents & two articles (Articles A & A1). The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellantaccused in support of his defence has neither examined any witness nor exhibited any document.

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4 . After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned above

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in the opening para of this judgment against which the present appeal has been preferred by the appellant.

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5 . Learned counsel for the appellant, submits that the prosecution has failed to bring home the offence beyond reasonable doubt. There are material contradictions and omissions in the statement of prosecution witnesses. The prosecutrix was a consenting party and the prosecution has failed to prove the age of the prosecutrix that she was below 18 years of age at the time of the incident and there is no conclusive evidence in the present case against the appellant to hold him guilty of the aforesaid offences. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal.

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6 . Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of the appellant for the aforesaid offences is well merited, as such, the appeal deserves to be dismissed.

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7 . We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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8 . Dr. Piyusha Bhaskar (PW-10) while giving the medical report vide Ex.P-23 after conducting the medical examination of the prosecutrix (PW-1) on 01.07.2019, has stated that the prosecutrix was habitual of sexual intercourse. She had prepared two slides of the vagina of the prosecutrix and given them for chemical examination. According to the FSL report Ex.P-25, semen stains and human sperms have been found in the vaginal slide of the prosecutrix and the appellant's underwear, but there is no examination report as to whose human sperms those were.

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This makes it clear that sexual intercourse was and has been done with the prosecutrix. But a clear conclusion cannot be given on the basis of medical evidence as to who was doing it.

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9 . The prosecutrix (PW-1) stated that her neighbour appellant had committed sexual intercourse with her for the first time on 06.10.2015 and the last sexual intercourse was on 13.06.2019. On the basis of her written report Ex.P-1, the First Information Report was lodged on 30.06.2019 and her medical examination was conducted on the next day i.e. 01.07.2019. Thus, it is evident from the statement of the prosecutrix herself that the appellant has committed sexual intercourse with her from time to time for about 03 years and 08 months, but the report was lodged about 17 days after the last sexual intercourse. Then it is not clear as to how the semen and human sperm were found in the vaginal slide prepared on 01.07.2019 and the fact that the prosecutrix did not tell her family or anyone else about the commission of the offence by the appellant for a long time itself indicates that the prosecutrix was a consenting party.

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10. The prosecutrix has stated that her maternal grandparents' house is at a short distance from her parents' house in village Devgaon and she lives with her maternal grandparents and studies in school. She has also stated that when the appellant came to her house for the first time, there was no one else in the house, who dragged her by her hand and took her to a room, forcibly had physical relations with her and threatened to kill her if she told anyone. She has stated that the last time the appellant had physical relations with her was on 13.06.2019 at 10:00 pm and has stated that the appellant came to her courtyard and called her and forcibly had physical relations with her.

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She has also stated that when she used to talk to her family about the incident, the appellant used to threaten her and also slapped her after the last sexual intercourse. This witness admits in her cross-examination that the appellant used to visit her (prosecutrix) maternal grandparents' house and she knew that the appellant was married and had two children. In the year 2015, she was studying in class VII and used to go to school from her maternal grandparents' house every day. On the suggestion of the defence, she has said that once she had told a friend of hers that the appellant had made physical relations with her, but she has neither told the name of that friend nor has that friend been examined. She has also admitted that she was afraid to tell her maternal grandparents about the appellant having made physical relations with her. She has clarified that the appellant used to come to her house and garden and sexually exploit her. She has also accepted that the last time on 17.06.2019 when the appellant came to her garden and called her, even at that time she neither woke up her maternal grandparents and aunt present in the house nor informed them about the incident. Rather she herself states that she went to the garden when the appellant called her. She also accepts that when the appellant used to come to her house, he did not bring any weapon or stick with him. She also accepts that when the appellant had physical relationship with her, she did not get any injury. On the basis of her entire statement, it is found that the prosecutrix did not give any information about the acts of the appellant to any of her family members for a long period of about 03 years and 08 months. Therefore, she appears to be a consenting party.

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11. The prosecutrix (PW-1) and her father (PW-3) have stated

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the date of birth of the prosecutrix as 29.08.2003. In this regard, Soman Netam (PW-11), who was in charge as headmaster of Government Primary School, Devgaon, Vikaskhand-Narharpur, District-North Bastar Kanker, Chhattisgarh, has certified the admission register of the prosecutrix in the school vide Ex.P-27, according to which the date of birth of the prosecutrix is mentioned as 29.08.2003. If we consider that date, then on the date of the first sexual intercourse as told by the prosecutrix, on 06.10.2015, her age was about 12 years and 02 months and on the date of the last sexual intercourse, as told by her, on 13.06.2019, her age was about 16 years. Since the prosecutrix did not tell the incident to any family member for a long time, considering the date of the alleged last sexual intercourse i.e. 13.06.2019, she appears to be around 16 years old at the time of incident.

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12. The date of birth recorded in the Dakhil Kharij register presented by the prosecution has been challenged and it has been argued that no reliable document has been certified regarding the date of birth recorded in it. The prosecutrix (PW-1) has been unable to tell the date of birth of any of her siblings. She has said that Kotwar is posted in her village Devgaon and her father (PW-3) has stated that he had not got any entry regarding the date of birth of the prosecutrix in the Kotwari register. In this way, on what basis has the date of birth been recorded in the Dakhil Kharij register, no other documentary evidence has been presented in this regard.

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13. In the matter 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 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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14. In the matter of Alamelu and Another Vs. State,

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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. It was 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

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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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15. In the matter of Rishipal Singh Solanki Vs. State of Uttar

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Pradesh & 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 sub-section (2) of section 9 so as to seek evidence

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for the purpose of recording a finding stating the age of the person as nearly as may be.

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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 subsection (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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16. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the Hon’ble 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

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certificate was produced not by the prosecution but instead by the court 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 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 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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17. If we consider the evidence presented in the case in the light of the above-mentioned judgments, then it is clear from the aforementioned discussions of the evidence that no document has been proved on the basis of which the date of birth of the prosecutrix was recorded in the Dakhil Kharij register. There was Kotwar in village Devgaon, the

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birthplace of the prosecutrix, but her date of birth has not been registered in the Kotwari register. The in-charge headmaster, Soman Netam (PW-11), who certified the Dakhil Kharij register, has revealed in his evidence that the entries have been made on the basis of the declaration register. In cross-examination, he admits that he cannot tell which document the father of the prosecutrix had brought regarding the date of birth at the time of admission of the prosecutrix in the school. He admits that there is a column of witness in the declaration register, but in this case, there is no signature of any witness in the declaration register Ex.P-29. He also admits that he has not seen any other certificate of the prosecutrix regarding the date of birth. Thus, it is clear from the evidence presented that the date of birth of the prosecutrix was not recorded in the Kotwari register. There is no evidence that the date of birth of the prosecutrix was recorded before any competent authority immediately after her birth. It does not appear from the Dakhil Kharij register Ex. P-27C and Ex.P-28 presented on record that the date of birth has been recorded on the basis of any document containing it. Along with the prosecutrix, her father (PW-3) has also been unable to tell the date of birth of other children apart from the prosecutrix. In this situation, it cannot be said with certainty on what basis the date of birth of the prosecutrix was recorded in the Dakhil Kharij register. Therefore, the date of birth recorded as 29.08.2003 cannot be considered as the definite date of birth and the evidentiary value of the presented Dakhil Kharij register is not a definite nature with regard to the date of birth of the prosecutrix.

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18. In view of the 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 found sustainable.

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19. Thus, we are of the considered opinion that the appellant is entitled for acquittal on the principle of benefit of doubt. The conviction of the appellant for the offences under Sections 450, 376(2)(n), 376(3) and 506(Part-II) of I.P.C. are hereby set aside and he is acquitted of the said charges.

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20. Accordingly, this Criminal Appeal is allowed.

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21. Appellant is in jail. He be released forthwith, if not required in any other case, on his executing bail bonds and two sureties each in the like amount to the satisfaction of the Trial court concerned as required by Section 437-A of Cr.P.C.

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22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/- (Rajani Dubey) (Sanjay Kumar Jaiswal) Judge Judge

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H.L. Sahu

Sanjay Juri v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sanjay Juri v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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