Partly allowed

Dilbharan @ Jodha Kanwar v. State of Chhattisgarh

Chhattisgarh HC1 Dec 2024CRA/589/2020

Case brief

AI extract

What is this about?

Appeal against conviction of a deaf and dumb girl's rape. The Court held the prosecution failed to prove the victim was below 18 years, setting aside convictions under Section 376(2)(i) IPC and Section 6 POCSO. Rape, house-trespass and hurt convictions were upheld on her trustworthy sole testimony, with sentence reduced to ten years' RI.

What did the court decide?

Convictions under S.376(2)(i) IPC and S.6 POCSO set aside; conviction under Ss.376(2)(l), 450, 323 IPC upheld with sentence under S.376(2)(l) reduced to 10 years' RI.

Dilbharan @ Jodha Kanwar Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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2024:CGHC:47261-DB

NAFR

Digitally signed by RAHUL RAHUL JHA JHA Date:2024.12.12 15:32:35 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 589 of 2020

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1 - Dilbharan @ Jodha Kanwar S/o Baijnath Kanwar Aged About 40 Years R/o Village Karouti (V.) , Police Station Jhilmili, District Surajpur Chhattisgarh., District : Surajpur, Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through Police Station Jhilmili, District Surajpur Chhattisgarh., District : Surajpur, Chhattisgarh

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Respondents

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For Appellant : Mr. Rudra Nath Mukherjee, Advocate For Respondent(s) : Mr. Devesh G. Kela, Panel Lawyer

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Hon’ble Smt. Rajani Dubey, Judge

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Hon’ble Mr. Bibhu Datta Guru, Judge Judgment on Board

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Per Bibhu Datta Guru, J

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02/12/2024

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The appellant has preferred this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 27/02/2020 passed in Special Sessions Case No. 18/2018 by the learned Additional Sessions Judge, Fast Track Court, Special Judge, Surajpur, District Surajpur (C.G.), whereby the appellant has been convicted and sentenced as under:-

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Conviction	Sentence
U/s 450 of the IPC	RI for 7 years and fine amount of Rs. 50/- in default of payment of fine to further undergo RI for 03 months.
U/s 376 (2) (I) of the IPC	R.I. for life with fine of Rs. 50, in default of payment of fine to further undergo RI for 03 months.
U/s 376 (2) (L) of the IPC	R.I. for life with fine of Rs. 50, in default of payment of fine to further undergo RI for 03 months.
U/s 323 of the IPC	R.I. for 6 months with fine of Rs. 50, in default of payment of fine to further undergo RI for 01 month.
Under Section 6 of the POCSO Act, 2012	RI for life with fine of Rs. 50, in default of payment of fine to further undergo RI for 06 months.

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(i) Brief facts of the case are that on 08.03.2018, the victim's father had gone to get paddy with his wife. At that time, his elder daughter (the victim) who is dumb and deaf since birth, was alone in the house. At that time, around 4.00 pm, the accused Dilbharan alias Jodha entered into their house and threw the victim on the ground and committed raped with her. The incident was reported by the victim's father at Police Station Jhilmili on 10.03.2018, on which the Police Station Jhilmili registered a First Information Report (FIR) against the accused under Sections 376, 450 and 323 of the Indian Penal Code and Section 6 of the POCSO Act and the case was taken into investigation.

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(ii) On finding the evidence of the accused having committed the offence under Sections 450, 376 (2) (I), 376 (2) (L), 323 of the Indian Penal Code and Section 6 of the POCSO Act, he was arrested and after completing investigation in the case, a charge sheet was prepared against him and presented before the concerned Court. The trial Court framed the charges under Sections 450, 376 (2) (I), 376 (2) (L), 323 of the Indian Penal Code and Section 6 of the POCSO Act

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(iv) In order to bring home the offence, the prosecution recorded the statements of a total of 12 prosecution witnesses and exhibited as many as 20 exhibits. The statement of the appellant under Section 313 Cr.P.C. was recorded, wherein he had expressed his innocence and false implication in the matter. He chose to testify in defense, declaring himself innocent. But no defense evidence has been presented on behalf of the accused.

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(v) The learned trial Court, after considering the evidence on record, convicted the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict.

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Mr. Rudranath Mukherjee, learned counsel appearing for the appellant submits that the appellant has been falsely implicated in this case. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of examination

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of the author of the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the prosecutrix. No any kotwari register or ossification report are produced by the prosecution to determine the actual age fo the prosecutrix that on the date of incident she was below 18 years of age. There is no evidence that the appellant was previously knowing that the Victim was dumb and deaf. The conviction of the appellant is bad in law and is not sustainable.

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On the other hand, Mr. Devesh G. Kela, learned Panel Lawyer for the State/respondent submits that the appellant has committed a heinous crime of rape against the Victim who is dumb and deaf and after appreciating the evidence and the materials collected by the prosecution, the trial Court has rightly arrived at a finding with regard to the guilt of the appellant which needs no interference and as such, this appeal deserves to be dismissed.

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

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The first and foremost question arise whether the Victim (PW3) was below 18 years or 16 years of age on the date of incident or not?.

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With regard to the age of the Victim, the prosecution has mainly relied upon the school admission and discharge register

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(Ex.P/11C), the statement of the Victim (PW3), her father (PW5) and Samin Khan (PW6).

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According to school admission and discharge register (Ex.P/11C), the date of birth of the Victim is 07/07/2006.

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The Victim (PW3) is dumb and deaf. Her statement was recorded with the help of deaf and dumb teacher of Deaf School, Vishrampur before the Court. The Victim has deposed that she knows about her age and she has studied upto 5^th class. Father (PW5) of the Victim has deposed that the Victim was aged about 12 years on the date of incident. Samin Khan (PW6), who was working as teacher in Primary School, has deposed in his deposition that as per serial No. 195 of the school admission and discharge register (Ex.P/11C), the date of birth of the Victim is 07/07/2006. However, he admitted that while the Victim was admitted in the school, he was not posted. He admitted in crossexamination that there is no mention in the register that on what basis, the date of birth of the Victim was recorded in the said register.

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The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 , the Supreme Court has 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,

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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. 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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Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:-

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"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such

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kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

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The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-

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"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."

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In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.

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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 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

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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 Victim 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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11. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &

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Others, 2022 (8) SCC 602 , while considering various judgments,

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

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XXXX XXXX XXX

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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

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Act, 2000 or sub- section (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 scrutinized 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

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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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Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846 , Hon'ble

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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 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

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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

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thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) 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 fromthe 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 threejudge 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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Reverting to the facts of the present case, the Victim (PW1) has only stated in her deposition that she knows her date of birth, but she did not tell actual date of birth. Her father (PW5) has deposed that the Victim was aged about 12 years on the date of incident, however, he did not stated exact date of birth of the Victim. Teacher- Shamin Khan (PW6), though has deposed that as per school admission and discharge register, the date of birth of the Victim is 07/07/2006, but he admitted in cross-examination that he was neither posted at the time of her admission nor there

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is mention in the register that on what basis the date of birth was recorded in the said register.

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Except for these evidences, no other evidence like Kotwari register or ossification test report have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses PW-3, PW-5, and PW-6 and also Dakhil Kharij Register (Ex.P/11C) are not sufficient to hold that the Victim was minor on the date of incident because of the reason that no documents has been shown to ascertain the fact that on what basis the date of birth of the Victim was recorded in the said register. There is every possibility that the date of birth of the Victim is recorded in the Dakhil Kharij Register (Ex.P/11C) on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the Victim are not of that sterling quality which is sufficient to determine the age of the Victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor.

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In view of the above, the conviction as held by the trial Court under Section 376 (2) (I) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 cannot be

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sustained, in absence of cogent and clinching evidence with regard to age of the Victim.

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The next question arose for consideration, whether the appellant committed rape with the Victim or not?

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The Victim (PW3) whose deposition was recorded through deaf and dumb teacher of Deaf School, Vishrampur, has deposed in her deposition that when she was alone, the appellant came to her house and after putting her lower paint off, he thrown her on the ground. Subsequently, he closed the door, committed marpeet with her and committed rape with her. Nothing relevant has been brought by defence in cross-examination of this witness.

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Father (PW5) has deposed in his examination-in-chief is that on the date of incident, he along with his wife had gone for taking paddy. The Victim was alone in the house. When they returned to the house in the evening, the victim was found slept. After making meals, they tried to wake up the Victim, but she did not woke up. On the next day, when they tried to wake up her, they found there was swelling over the neck, then her mother asked her and thereafter the victim told her that the appellant, committed marpeet with her and committed rape with her.

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Mother (PW12) has deposed in her examination-in-chief that on the date of incident, the appellant beaten the Victim and committed rape with her. She deposed when she returned to the house in the evening, the Victim was found sleeping after

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suffering from fever. On the next day, the Victim told her through sign that the appellant, committed rape with her after beating. In cross-examination, she admitted that she had not seen the incident.

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Dr. Garima Singh (PW11) has deposed in her deposition that the Victim was brought before her for medical examination. She found following while examination:-

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External Testing:-

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The victim was developing secondary sexual characteristics.

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The victim had not started menstruating.

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He had no armpit hair either.

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The victim was complaining of pain in both cheeks. But there was no swelling or injury marks. The duration of the pain cannot be told.

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Internal Testing:-

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The vulva was normal.

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2 Pubic hair was present, and was not contiguous.

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The hymen was torn, there was no redness. The margin of the hymen was irregular.

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The vagina was normal.

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She had prepared two vaginal slides for its chemical examination. She opined that there was possibility of sexual intercourse being committed with the Victim.

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The F.S.L. report in the present case is Ex.P/17. According to the FSL report, human sperm was found over Article-A i.e. underwear

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of the Victim, Article-B i.e. Vaginal slides of the Victim and ArticleC i.e. underwear of the appellant. The FSL report is positive.

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In the case of Ganesan v. State , (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality.

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In the case of State (NCT of Delhi) v. Pankaj Chaudhary , {(2019) 11 SCC 575}, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises.

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In the case of Sham Singh v. State of Haryana , {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

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Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed

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hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the victim. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained under Section 376 (2) (L), 450 and 323 of the IPC.

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For the foregoing reasons, the conviction of the appellant under Section 376 (2) (I) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 is set-aside. However, the conviction and sentence awarded to the him under Sections 376 (2) (L), 450 and 323 of the IPC is upheld. With regard to sentence part, since the appellant is aged about 40 years at the time of filing this appeal and he will be presently aged about 44 years and under Section 376 (2) (L) of the IPC, the minimum punishment should not be less than 10 years, therefore, this Court is of the view that he should be sentenced for 10 years under Section 376 (2) (L) of the IPC. Ordered accordingly.

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Resultantly, the appeal stands partly allowed .

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Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.

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Registry is also directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the Appellant

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informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of high Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Sd/Sd/(Rajani Dubey) (Bibhu Datta Guru) JUDGE JUDGE

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Rahul

Dilbharan @ Jodha Kanwar v. State of Chhattisgarh

Case brief

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Dilbharan @ Jodha Kanwar v. State of Chhattisgarh

Case brief

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What the court decided

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