Jitendra Kumar Vs State of Chhattisgarh

¶1

1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

CRA No. 822 of 2021

¶5

Jitendra Kumar S/o Late Lakshman Uraon Aged About 27 Years, R/o Village Gopalpur, Thana Chandrapur District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

¶6

---- Appellant

¶7

Versus

¶8

State of Chhattisgarh Through Officer In Charge Police Station Chakradhar Nagar District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh

¶9

---- Respondent

¶10

For Appellant : Mr. B.P. Rao, Advocate.

¶11

For State : Mr. Abhishek Singh, Panel Lawyer.

¶12

Hon’ble Shri Justice Goutam Bhaduri

¶13

Hon'ble Smt. Justice Rajani Dubey

¶14

Judgment on Board

¶15

Per Goutam Bhaduri. J.

¶16

10.06.2024

¶17

Heard.

¶18

This appeal is directed against the judgment of conviction and order of sentence dated 13.07.2021 passed by the Additional Sessions Judge

¶19

(F.T.C.) Raigarh, in Special Criminal Case under the POCSO Act

¶20

33/2020, whereby, the appellant has been convicted and sentenced as

¶21

under:-

¶22

Conviction	Sentence
Under Section 363 of IPC	R.I. for 7 years with fine amount of Rs.
	1000/- and in default of payment of fine
	to undergo additional R.I. for 03 months.
Under Section 366 of IPC	R.I. for 10 years with fine amount of Rs.

¶23

2

¶24

	1000/- and in default of payment of fine to undergo additional R.I. for 03 months.
Under Section 376(3) of IPC	R.I. for 20 years with fine amount of Rs. 10000/- and in default of payment of fine to undergo additional R.I. for 06 months.
Under Section 4(2) of POCSO	R.I. for 20 years with fine amount of Rs. 15000/- and in default of payment of fine to undergo additional R.I. for 06 months.

¶25

(All substantive sentences shall run concurrently).

¶26

According to the case of the prosecution, the victim’s mother lodged a report on 21.08.2020 at Police Station, Chakradharnagar, vide (Ex.P /22) that her daughter whose Date of Birth is 24.12.2004 is missing since 17.08.2020. Subsequently, having enquired, it came to her notice that she has been enticed away by unknown person. Therefore, a report initially was lodged against the unknown person by F.I.R. (Ex. P/23). In order to prove the age of the victim, her mark-sheet of Class 8^th and dakhil-kharij register showing her date of birth was seized. The victim was subsequently recovered from the possession of the accused, thereafter, her statement was recorded under Section 164 of Cr.P.C. She was subjected to medical examination and thereafter, the FSL was also conducted. The statement was recorded and charge-sheet was filed.

¶27

During the course of trial, the appellant abjured his guilt and claimed the trial. The prosecution, in support of the case examined 09 witnesses. The learned Sessions Judge after evaluating the facts and evidence,

¶28

3

¶29

convicted the accused/appellant as stated supra. Hence this appeal .

¶30

Learned counsel for the appellant would submit that the prosecution has failed to prove that the victim was below the age of 18 years. He would further submit that the document which has been produced by the prosecution would show that by overwriting the date of birth was changed, whereas the mother (PW-5) has stated that her date of birth was in the year 2000. The victim was born in the year 2000 and the date of incident since 17.08.2020 therefore on that date she had attained her majority and the statement of the victim (PW-1) would further show that she was a consenting party to the entire incident. Therefore, though the prosecution utterly failed in its duty to prove that the learned Sessions Judge did not appreciate the evidence in proper perspective and the conviction is only based on the presumption and the sentence imposed is for 20 years, which cannot be sustained and the appeal deserves to be allowed and the conviction is required to be set-aside.

¶31

Per contra, learned counsel for the State would submit that the document produced, the mark-sheet clearly demonstrates the date of birth as 16.07.2004 which is also supported by the statement of the victim (PW-1) therefore, there can be no doubt attributed to the document and the Doctor’s statement which has been the vaginal slide, the FSL since the affirmation of the spermatozoa was found when it was ready with the statement of the victim and it would show that the victim was below the age of 18 years was subjected to sexual intercourse, therefore, the judgment and conviction of the Sessions Court is well merited, which do not call for any interference.

¶32

4

¶33

We have heard the learned counsel for the parties and perused the evidence available on record.

¶34

The mother, initially who lodged the complaint vide (Ex. P/22), was examined as PW-5. In her statement she clearly deposed that the victim was born in the year 2000.

¶35

The victim has stated that her date of birth is 16.07.2004. The father of the victim (PW-3) states that he has 04 children and he does not know the date of birth of the victim and he has not obtained/prepared any Birth Certificate of the victim. In order to prove the age of the victim, the prosecution examined (PW-2) A.M, he has produced the dakhil-kharij register (Ex. P/5) and on the basis of such date of birth shown in the dakhil-kharij register, the certificate (Ex. D/6) was issued. We have perused the (Ex. P/5) which is a dakhil-kharij register, prima facie perusal of it would show that in respect of year there has been some overwriting made which is also fortified by the statement of the Head Master (PW-2). At para 7 of PW-2 purports that the earlier Head Master has put a whitener on the year and thereafter, the correction was made and on that basis he has issued (Ex. P/6). Therefore, the document (Ex. P/6), in our view, loses the significance as it was based on (Ex. P/5). However, (Ex. P/5) whether it is correct or not, though the prosecution produced the documents, but was unable to explain the fact that why whitener was put on the year and correction of year was re-written. The document School Transfer Certificate (Article A-2) would also show that in respect of date of birth over the year some correction was made of the year 2000. There is no plausible explanation as to why there are two

¶36

5

¶37

corrections have been made in two documents, one is in the dakhil-kharij register and another is in the School Transfer Certificate. It is improbable to accept that at the same time two wrong date of birth was entered in the said documents (Ex. P/5) and (Article A-2). It raises a doubt when it is read along with the statement of the mother of the victim where she specifically said that her date of year of birth was 2000, whereas dakhilkharij register (Ex. P/5) and (Article A-2) shows that the year has been made as 2004 which finds with re-written figure not in the original. Apart from the fact that the (Ex. P/5) was proved by (PW-2) who was not the author.

¶38

The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:-

¶39

“14 This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth.

¶40

“14…. The date of birth mentioned in the scholar’s register has no evidentiary value

¶41

6

¶42

unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value.”

¶43

In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.”

¶44

The Supreme Court further in the case of P. Yuvaprakash vs. State Rep. By Inspector of Police, AIR 2023 SC 3525 has determined the mode of determination of the age of juvenile. The Court at para 15 has outlined the procedure to be followed in the cases where the age determination is required. Para 15 and 16 of the said judgment are reproduced hereunder:-

¶45

“15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors., 2021 (12) SCR 502 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:

¶46

7

¶47

“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 equivalent 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."

¶48

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., (2019) 9 SCR 735 that:

¶49

“Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 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.

¶50

8

¶51

When we have examined the evidence which is adduced by the prosecution, in the light of the principle laid down by the Supreme Court (supra) we find that it falls short to satisfy the same. If there have been corrections made in the year, it will have a huge significance with respect to determine the age. As normally, the parents would be in a better position to explain the date of birth of their child instead of the child itself. When the mother (PW-5) has stated and admitted the fact that her date of birth was in the year 2000 though the statement and evidence will hold this way in favour of the appellant/accused to raise a doubt. In view of the same we hold it that the prosecution has failed to prove the age of the victim that she was below 18 years of age on the date of incident and accordingly, give the benefit of doubt to the accused/appellant.

¶52

Now coming back to the statement of the victim (PW-1) she stated that she voluntarily went in the company of the accused. When specific question was asked to her that whether any physical relation was established she denied the same. The statement of the Dr. (PW-6) would also show that no injury was found on her body and the statement was further made that in respect of forceful rape, the opinion was inconclusive. When the victim (PW-1) has categorically stated and made statement that the accused has not made any physical relation with her, in such circumstances read it with the statement of the Dr. (PW-6). We further hold that the acquisition cannot be attributed to the appellant alone. Accordingly, we hold that the prosecution, which was unable to prove the fact that the victim was subjected to forceful sexual intercourse against her will has not been proved beyond reasonable doubt. In view of the fact we deem it proper to extend benefit of doubt to lean in favour

¶53

9

¶54

of the appellant/accused.

¶55

Accordingly, the appeal is allowed and the impugned judgment of conviction and order of sentence is set-aside and appellant is acquitted of all the charges levelled against him. The appellant is in jail. He be released forthwith if not required to be detained in any other case.

¶56

Sd/- Sd/-

¶57

(Goutam Bhaduri) (Rajani Dubey) Judge Judge

¶58

Uttej

Jitendra Kumar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jitendra Kumar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Satpati Sahu Vs State of Chhattisgarh

Dasoda Bai Vs Fakirchand Verma

Tarun Dahire Vs Sneha Dahire

Satpati Sahu Vs State of Chhattisgarh

Hunga Kawasi Vs State of Chhattisgarh

Mithilesh Patel Vs State of Chhattisgarh