Allowed
Ramlal and Ors. v. State of Chhattisgarh
Chhattisgarh HCCRA/68/2006
Case brief
from the order text
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NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR…
What the court decided
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NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR…
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2024:CGHC:25598
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 68 of 2006
1. Ramlal, s/o Shri Dyalu, aged about 65 years, r/o Village-Kanakot, ThanaPalari, District-Raipur CG
2. Agardas, s/o Shri Biselal, aged about 36 years, r/o village-Kanakot, Thana-Palari, District-Raipur CG
3. Sahabin Bai, w/o Maheshram, aged about 40 years, r/o village-Chitawar, Thana-Kasdol, District-Raipur CG
... Appellants
versus
State of Chhattisgarh, Through: Station House Officer, Police Station: Palari Officer-District-Raipur, (CG)
... Respondent
(Cause title is taken from the CIS)
-----------------------------------------------------------------------------------------------------------------For Appellants : Shri Paras Sahu, Advocate on behalf of Shri HC Shukla, Advocate For Respondent/State : Shri KS Saini, PL
Hon'ble Shri Justice Ravindra Kumar Agrawal
Judgment on Board
16.07.2024
1. This appeal under Section 374(2) of the CrPC arises out of the impugned judgment of conviction, and order of sentence dated 12.01.2006 passed by the learned First Additional Sessions Judge, Balodabazar, District-Raipur, in Sessions case-199 of 2005, whereby, appellants have been convicted for the offence and sentenced as under:
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Conviction (Each of the accused) Sentence
Under Section 363 of the IPC RI for one year and fine of Rs.500/with default stipulation Under Section 366 of the IPC Ri for three years and fine of Rs.500/- with default stipulation
2. In the present appeal, appellant-3 Sahabin Bai, w/o Maheshram died on 21.12.2015, and the appeal on her behalf has been abated vide order dated 01.04.2024. Hence, this appeal is being heard and considered on behalf of appellants-1 and 2.
3. Brief facts of the case are that on 03.03.2005, a missing report was lodged by mother of the prosecutrix, PW8, to the Police that her minor daughter was missing since 01.03.2005, when she had gone to School, but she did not return back to home. Despite her search in her relatives’ house, and nearby places, her whereabouts could not be traced out. Police recorded her missing report in Roznamchasanha, Ex.P3, and started enquiry. During the enquiry, the prosecutrix was recovered on 22.03.2005 from the brick-kiln of village Mansar, District- Bhandara, Maharashtra, and recovery Panchnama Ex.P4 was prepared. Prosecutrix was sent for her medical examination to the Primary Health Centre, Palari, where Dr Smt Sunaina Behra, Assistant Surgeon, has examined her and gave report Ex.P1. During her examination, the doctor has not noticed any external injury on her body, and she opined that prosecutrix was habitual for sexual intercourse, and the girl anxious to couple with that person. Two slides of prosecutrix vaginal swab were prepared,
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sealed, and handed over to the Police for chemical examination. FIR Ex.P6 was registered against the appellants for the offence under Section 363, 366 and 376/34 of the IPC. With respect to the age and date of birth of the prosecutrix, Police has seized the School Admission and Discharge Register from the Government Primary School, Kanakot, Block-Palari, District-Raipur, vide seizure memo-Ex.P16, and after retaining its true copy, original Register was returned back to the School. As per the School Register, date of birth of the prosecutrix is, 19.04.1988. The vaginal swabs, and clothes of the prosecutrix have been sent for their chemical examination to the State FSL, Raipur, from where, report was received by the Police, according to which, semen and sperms were found on the articles sent.
4. Statement of the witnesses have been recorded under Section 161 of the CrPC. Accused persons were arrested, and after completion of investigation, charge-sheet was filed against the accused/appellants for the offence under Sections 363, 366 and 376/34 of the IPC before the learned Judicial Magistrate, First Class, Balodabazar. Case was committed to the Court of learned Sessions Judge, Raipur, from where, it was transferred to the learned trial Court for its trial.
5. Learned trial Court has charged the accused persons for the offence under Sections 363, 366, and 376(1) read with Section 109 of the IPC. Appellants denied the charge and claimed trial.
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6. In order to establish the charge against the appellants, prosecution has examined as many as 14 witnesses. Statement of the appellants have also been recorded under Section 313 of the CrPC, wherein, they denied the circumstances appearing against them, pleaded innocence and submitted that they have been falsely implicated in the offence. Three defence witnesses have also been examined by the appellants in their defence.
7. After appreciation of oral, as well as documentary evidence led by the parties, learned trial Court has acquitted the appellants from the offence under Section 376/109 of the IPC, however, appellants have been convicted for the offence under Section 363, and 366 of the IPC, and sentenced them as mentioned in the earlier part of this judgment. Hence this appeal.
8. Learned counsel for the appellants-1 and 2 would submit that prosecution has failed to prove its case beyond any reasonable doubt. There is no legally admissible evidence produced by the prosecution in support of the age, or date of birth of the prosecutrix, that on the date of incident, prosecutrix was minor, less than 18 years of age. Though the School Admission and Discharge Register has been produced by the prosecution, but the said Register has not been proved by its author, and there is no evidence on record that on what basis entry of date of birth of the prosecutrix was made in the Register. Prosecutrix was a major girl on the date of incident, and she herself eloped with the appellants, and
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resided with co-accused- Narendra, as she was having love affair with him. Present appellants have not kidnapped the prosecutrix, and they are not associated in any manner in the alleged crime, for the purposes of marriage of the girl. There are material omissions and contradictions in the evidence of prosecution witnesses, and therefore, appellants are entitled for acquittal.
9. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants, and submitted that prosecution has proved its case beyond any reasonable doubt. But for minor omissions and contradictions the evidence of prosecution witnesses, the witnesses have consistently pointing towards guilt of the appellants, and the learned trial Court has rightly appreciated the evidence available on record, and held the appellants guilt for the alleged offence, which needs no interference by this Court.
10. I have heard learned counsel for the parties and perused the record.
11. The first and foremost question arises for consideration would be, the age of prosecutrix, as to whether she was minor, and less than 18 years of age, or not, on the date of incident. The prosecution has mainly relied upon the School Admission and Discharge Register, Ex.P20, which is sought to be proved by PW7, Balaram Kannoje, Assistant Teacher, Gr-II in the School, where prosecutrix was studying.
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12. PW7Balaram Kannoje, stated in his evidence that he was posted and working at the Primary School, village-Kanakot as Assistant Teacher from 23.03.2005. Police has seized the School Register with respect to the date of birth of the prosecutrix, in which, her date of birther has been recorded as 19.04.1988. It is not stated by him that he was the author of said Register. The basis on which date of birth of the prosecutrix was recorded in the Register, has not been disclosed by him. There is no other evidence available on record with respect to the age or date of birth of the prosecutrix.
13. In the matter of Ravinder Singh Gorkhi Vs State of UP and Others, 2006 (5) SCC 584, Hon’ble Supreme Court has observed the following in Para 26 of the judgment:
“26.In Birad Mal Singhvi v. Anand Purohit [(1988 Supp. SCC 604], this Court held: “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." (emphasis supplied)
14. In case of Alamelu and Another Vs. State, represented by Inspector of Police, reported in 2011 (2) SCC 385 , the Hon'ble Supreme Court has held that the TC (transfer certificate) which is issued by a
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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 absence of any material on the basis of which the age was recorded.
15. In paragraphs 40, and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under :
“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.........
"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
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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."
16. In case 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 :
“33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
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 for the purpose of recording a finding stating the age of the person as nearly as may be.
XXXX XXXX XXX
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.
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.
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
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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.
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.
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.
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.
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.
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.
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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17. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, reported in 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under :
“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.
“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
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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.”
“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.
17. 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.”
18. Reverting to the facts of the present case, prosecutrix PW5 has disclosed her age in her evidence as 16 and ½ years, on the basis of her School TC (Transfer Certificate). She was got admitted in the School by her father. Her father had got recorded her date of birth on her own will.
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The Police obtained the duplicate TC, and the prosecutrix kept the Original TC with her, in her house.
19. PW7, who is the mother of the prosecutrix, stated in her evidence that at the time of incident, her daughter was aged about 16 years. She could not disclose her date of birth.
In her cross examination, she stated that she informed about the birth of the prosecutrix to the Kotwar, but she has not submitted any document in this regard, in Kotwari Register.
20. Further, PW9, father of the prosecutrix stated in his evidence that at the time of incident, his daughter was aged about 16-17 years. He also did not disclose her date of birth.
In his cross-examination, he stated that he got registered date of birth of his children with the Kotwari Register. Date of birth of his daughter is 10.09.1988, which has been disclosed by him on the basis of School Register. He could not obtain any certificate from the Kotwar about date of birth of the prosecutrix. In the School, he got recorded date of birth of the prosecutrix on his own will and assumption.
21. From the evidence, and also the law laid down by Hon’ble Supreme Court in the aforesaid cases, it would be difficult to hold that the prosecution has proved age of the prosecutrix by leading cogent and clinching evidence, that prosecutrix was minor, less than 18 years of age on the date of alleged incident. Prosecution could have produced other
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evidence like, Kotwari Register/Ossification test report, or any other relevant record, to prove her date of birth but prosecution has failed to produce the same. In absence of any clinching and cogent evidence, it cannot be held that prosecutrix was minor and less than 18 years of age on the date of incident, yet the learned trial Court has held her minor, and below 18 years of age.
22. So far as the kidnapping, or taking away the minor girl is concerned, Hon’ble Supreme Court in the matter of S. Varadarajan Vs State of Madras , AIR 1965 SC 942, observed in paras 9 & 10 as below :
“9. It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
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her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.”
23. Prosecutrix, PW5 though has stated in her chief examination that when she was returning from the School, all the three accused persons dragged her in the Jeep and took her away to the house of maternal uncle of co-accused Narendra, who was juvenile in conflict of law, and thereafter, they took her to village Lavan by Truck. From there, the accused persons took her to brick-kiln at Mansar by Marshal vehicle, where, they forcefully performed her marriage with Juvenile Narendra, and thereafter, all the three accused persons returned to their village. She along with Narendra and his parents, was residing at Mansar. After some days, Police came there, and took her back.
In her cross-examination, she stated that she raised alarm when she was being kidnapped by the appellants, but none of the villagers has come to rescue her. When she was being taken by the appellants by vehicle, number of villagers bypassed the vehicle. It was stopped at village Chitavar, where she was being taken to the house of appellantSahabin Bai, and they stayed there for about 10-15 minutes. Thereafter, she was forcefully being taken to village-Lavan by Truck. When she was being taken to village -Lavan, she again raised alarm but no one came to save her. She denied that she was having love affair with juvenile Narendra. She denied from giving part A-A of her Police Statement,
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Ex.D1. It is also denied by giving her Police Statement that she was being taken to Mansar from Bhatapara by train, and if it is there in the Police Statement, Ex.D1, it is false. She also stated in her evidence that her marriage was performed with Narendra on the 2nd Day. At the time of her marriage, few persons of their village, who are also working in the same brick-kiln, namely, Rohit Kumar, Kishun, Dev Prasad, Dev Charan, Umesh, Vishnu, and Yattugon were present. Owner of the brick-kiln, was also there at the time of her marriage. She has not disclosed the Police about her forceful marriage. She further stated that at the time when Narendra and his parents go to their work, she was residing alone in the house. Sister of Narendra, aged about 11 years, was also there with her. She stayed with Narendra for about 20 days at Mansar.
24. From the evidence of this witness, though she stated that she raised alarm while she was being kidnapped by the appellants, but it appears from her evidence that she has not disclosed the same in her 161 CrPC statement, that she was being forcefully taken by the appellants, as alleged by her , while she was returning from the school. The appellants kidnapped her and despite her raising alarm, none came to rescue her. From her 161 CrPC statement, it reveals that she herself accompanied the appellant up to Mansar and she had gone with the appellant to Mansar from Bhatapara by train. It appears that she has not raised any alarm while she was going with Narendra up to Mansar, and has not made any complaint to anyone, that she was being kidnapped by the appellants.
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25. In view of above, and also from the law laid down by the Hon’ble Supreme Court in the case of Varadarajan (supra), it is not proved that the appellants have kidnapped the prosecutrix from the lawful guardianship of her parents, and induced in any manner, for her marriage. It is found that the learned trial Court has not properly appreciated the evidence available on record, and hence, reached to a perverse finding.
26. In the result, the appeal filed by the appellants-1 and 2 is allowed , the impugned judgment of conviction and sentence is hereby set aside. The appellants are acquitted from the alleged offence.
27. Appellants are reported to be on bail. Their bail bonds are continued for a further period of six months as provided under Section 437-A of the CrPC.
28. Record of the trial court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.
Sd/- (Ravindra Kumar Agrawal) JUDGE
padma
Colour shows how this judgement treated each authority
Ravinder Singh Gorkhi Vs State of UP and OthersRelied on¶13
2006 (5) SCC 584 · Who else cites this
Alamelu and Another Vs. State, represented by Inspector of PoliceRelied on¶15
2011 (2) SCC 385 · Who else cites this
Rishipal Singh Solanki Vs. State of Uttar Pradesh & OthersRelied on¶16
2022 (8) SCC 602 · Who else cites this
P. Yuvaprakash Vs. State represented by Inspector of PoliceRelied on¶17
2023 (SCC Online) SC 846 · Who else cites this
S. Varadarajan Vs State of MadrasApplied¶25
AIR 1965 SC 942 · Who else cites this
7 provisions across 3 enactments
Ramlal s/o Dyalu
Agardas s/o Biselal
Sahabin Bai w/o Maheshram
State of Chhattisgarh through SHO, Police Station Palari
Ravindra Kumar Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court