Durgesh Meravi Vs State of Chhattisgarh

1. The appeal arising out of the judgment of conviction and the order of sentence dated 20.12.2023 passed by the learned Special Judge (Protection of Children from Sexual Offences, 2012), DistrictKabirdham (C.G.) in Special Sessions Case No.99/2023, whereby, the appellant has been convicted and sentenced in the following manner :

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Sl.	Conviction	Sentence
No.
1.	Under Section 366 of the Indian Penal Code (for short, the POCSO)	Rigorous Imprisonment for 5 year and fine of amount of Rs.500/-, in default of payment of fine, further rigorous imprisonment for 2 months.

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Under Section Rigorous Imprisonment for 20 years 376(2)(n) of the and fine of amount of Rs.1,000/-, in IPC default of payment of fine, further rigorous imprisonment for 6 months

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2. The prosecution story, in brief, is that on 09.10.2022, an information was given by the victim's father at the Police Station, Bodla that his youngest daughter, whose date of birth is 20.12.2007, had gone out from the house by saying her mother that she is going to Durga Visarjan, but she did not come back to the house. Despite searching nearby, the parents of the victim could not find her. They suspected that someone had lured her daughter away, they made a complaint before the Police Station. On information received, the police station took action against the unknown person and registered a Crime No. 290/2022 under Section 363 of the IPC, under this, the First Information Report (FIR) (Ex. P-07) was registered and a Spot Map of the incident site (Ex. P-0) was prepared. After sending the application (Ex. P-23) to the Tehsildar for getting the Spot Map. After recovery of the victim on 24.12.2022, Recovery Panchnama (Ex.P-1) was prepared and the Police had obtained consent from the victim and her mother vide Ex.P-2 and Ex.P-15 for medical examination of the victim. After taking their consent, the victim was sent to the District Hospital, Kabirdham for medical examination. The statement of victim was recorded under Section 164 of the Cr.P.C (Ex.P-3) before the Chief Judicial Magistrate Kabirdham. An application was sent to the Headmaster of Government Primary School, Jaitatola for obtaining the dakhil-

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kharij register related to the victim (Ex. P-04). An admission register was presented by the Headmaster vide Ex.P-6. After arresting the accused, Arrest Memo (Ex.P-18) was prepared. Underwear of the accused from his possession was seized vide Property Seizure Memo, Ex.P-19 and the accused was sent to Community Health Center, Bodla for medical examination (Ex. P-20 and Ex.P-21).

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3. After completion of investigation, charge-sheet was filed before the learned Additional Sessions Judge (F.T.S.C. POCSO Act), District – Kabirdham (C.G.), from where the learned Special Judge, (Protection of Children from Sexual Offences Act, 2012), District – Kabirdham received the case for trial, hearing and disposal in accordance with law. Statements of the witnesses were recorded. The appellant / accused abjured his guilt and entered into defence that he is not committed any offence and has been falsely implicated in crime in question.

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4. The trial Court has framed charges against the appellant under Sections 363, 366A, 376(2)(n), 376(3) of the IPC and Section 6 of the POCSO.

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5. In order to establish the charges against the appellant / accused the prosecution examined 11 witnesses and exhibited 24 documents. The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and has been falsely implicated in the case.

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6. 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.

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7. Learned counsel for the appellant argued that the learned trial Court failed to consider the statement of the victim (PW-1), who specifically stated in her deposition that she went to Hydrabad with the appellant where she resided with him as his wife where the appellant made physical relationship with her. It was further stated that she was in impression that the appellant will get divorced from her earlier wife and thereafter, get married with the victim, therefore, she did not disclose the incident to anywhere and not lodged report against the present appellant. He submits that there is dispute regarding the age of the victim girl as her date of birth is mentioned contrary to version of statement of the victim girl and her father. He further submits that the doctor has mentioned age of the victim girl as 15 years as stated by the constable but in MLC she advised for X-ray for determination of the age of the victim girl and the police did not produce the X-ray report of the victim girl and per Ex.P-10 the victim voluntarily refused to get her X-ray which is also fatal for the prosecution, therefore, the present appellant is entitled to be acquitted. He also submits that the victim girl, who is not less than 18 years of age was resided with the appellant as his wife and she was having physical relationship with the present appellant which does not amount to rape but it is a consensual physical relationship

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between two major persons, therefore, the appellant is entitled to be acquitted. Therefore, the alleged offences of the IPC and POCSO are not made out against the appellant and he is entitled for acquittal.

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8. On the other hand, learned counsel for the State opposes and contends that the victim was minor and below 18 years of age at the time of incident which is proved by the School admission and discharge register Ex. P/6C which contains the date of birth of the victim as 23.03.2007. The school register is admissible piece of evidence to determine the age of the victim. The victim was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her. As such, the impugned judgment of conviction and sentence needs no interference.

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9. We have heard the learned counsel for the parties and perused the record with utmost circumspection .

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10. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the dakhil-kharij Register (Ex. P/6C), which is sought to be proved by Alka Khan (PW-2), the Headmaster of the Government Middle School, Jaitatola, in which, the victim was studied. Alka Khan (PW-2) has stated in her deposition that in Crime No.290/2022 an application was received from Police Station

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Bodla regarding the demand of dakhil-kharij register with regard to date of birth of the victim, who studied in her school. The document is Ex.P-6C. On the basis of above application, she had given the verified copy of the dakhil-kharij register regarding the date of birth of the victim to the police, which was seized by the police in front of the witnesses. The seizure letter is Ex.P-5. A to A of which is signed by her. She has brought the original dakhil-kharij register in which the date of birth of the victim is recorded as 23.03.2007. In cross examination, this witness has said that she has not register the date of the birth of victim in admission register at that point of time one Kanshi Ram Dhruve was the Headmaster. She further stated that she has no idea about that what document had been taken while entering the date of birth of the victim.

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11. At the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her father and on the oral information given by father of the victim the entry was made in the School admission register. The father of the victim (PW-3) has stated in his statement that he did not know the actual date of birth of the victim and stated that his elder daughter was born in 2000. The mother of the victim (PW-9) has stated in her deposition that she is an illiterate person and she did not know the date of birth of her daughter. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the victim.

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12. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school admission and discharge register it would not be safe to hold that the victim was minor on the date of incident. The statement of the victim, her parents as also the statement of Alka Khan (PW-2), Headmaster of the Government Middle School, Jaitatola are contradictory to each other and does not inspire confidence of this Court to hold that the date of birth of the victim is 20.12.2007.

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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

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of the person in the absence of the material on which the age was recorded."

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14. In the matter of Rishipal Singh Solanki Vs. State of Uttar 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 subsection (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 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 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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15. Recently, in the matter of P. Yuvaprakash Vs. State represented

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by Inspector of Police, 2023 SCC Online SC 846, 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

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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 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

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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 (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 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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16. Reverting to the facts of the present case and due consideration of

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the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident, as such, the trial Court in the impugned judgment has rightly held that the victim is not a minor girl, hence, we affirm the finding given by the

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trial Court that the prosecution failed to prove that the date of incident victim was a minor girl.

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17. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, we have carefully perused the statement of the victim recorded under Section 164 CrPC (Ex.P-16). In her 164 CrPC statement (Ex.P-16), the victim has stated that she knew appellant / accused. He was resident of same village as of victim. There was a love affair between her and accused / appellant Durgesh Maravi, since she was studying in seventh class. She further stated that the accused / appellant Durgesh Maravi was already married. He told her that that he would divorce his wife and marry her. By luring her for marriage, accused / appellant-Durgesh Meravi had continued physical relation with her for two-three years in the village. When she repeatedly asked him for marriage, he married her alone on 02.03.2022 in a temple in Charanatti forest to console her and took her to Hyderabad on 06.10.2022. In Hyderabad, he kept her with him for about three months and even during this time he had physical relations with her many times.

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18. In her 164 CrPC statement, she has stated that she already knew the fact that the appellant was a married person and by her own will she went at Hydrabad along with the appellant. She did not stated that the appellant threaten her or used any force while travelling along with him and while making physical relationship with her against her will or consent.

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19. The victim (PW-1) has stated in her statement that did not know her date of birth but it is written in the school admission register as 23.03.2007. She knew accused from her childhood as he was also resided in the same village, he used to talk her through mobile phone of her uncle's daughter. The accused told her that he would marry her and had physical relations with her several times in the village and took her away to Hyderabad, where she lived with the accused for three months, the accused kept her like his wife and during this period also had physical relations with her. The accused was already married, he had two children and he also used to talk to his wife during this period. Since she is a minor, the accused kept her hidden and also abused and beat her and did not allow her to talk her parents. The victim also said that the accused had left her in Hyderabad and came to the village and after some time, he came back again in Hyderabad and took her to Bandhatola, her uncle’s house and after leaving Bandhatola, he left saying that he will take her back to Hyderabad after two-three days. She went to her maternal uncle's house, the accused had lied to her that he would divorce his wife.

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20. Close scrutiny of the evidence, it is clear that the victim was a consenting party. In her 164 CrPC statement, the victim stated that there was an affair between the appellant and the victim and the victim known the fact that the appellant was already married, even after she established physical relationship with the appellant.

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21. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, but if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

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22. Considering the entire evidence available on record, the evidence with regard to the age of victim and the conduct of the victim, we are of the opinion that the prosecution has failed to prove that the victim was less than 18 years of age at the time of incident. Also considering the fact that the victim by her own will went with the appellant and has established physical relation with him and the victim was a consenting party. Therefore, in the above facts and circumstances of the case, offence under Sections 366 and 376(2) (n) of the IPC would not be made out against the appellant.

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23. For the foregoing reasons, the appeal is allowed and the judgment of conviction and order of sentence dated 20.12.2023 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 31.12.2022. He be released forthwith, if not required in any other case.

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24. Keeping in view of the provisions of Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with 2 reliable sureties in the like amount before the Court concerned, which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court.

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25. The trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/- Sd/(Rajani Dubey ) (Ramesh Sinha ) Judge Chief Justice

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Hem

Durgesh Meravi v. State of Chhattisgarh

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Durgesh Meravi v. State of Chhattisgarh

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