Mahendra Jain Vs the State of Chhattisgarh

The appellant in this appeal is challenging the legality and validity of the judgment of conviction and order of sentence dated 12.9.2019 passed by the Additional Sessions Judge (FTC) and Special

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Judge (Protection of Children from Sexual Offences Act, 2012), Uttar Bastar Kanker in Special Criminal Case (POCSO Act) No.04/2019 whereby the appellant stands convicted under Sections 342, 376(2)(f) (j)(k) of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short “the POCSO Act, 2012”). However, keeping in view the provisions of Section 42 of the POCSO Act, 2012,

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the appellant is sentenced as under:

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Conviction	Sentence
Under Section 342 of Indian Penal	RI for one year, pay a fine of
Code.	Rs.1000/- and in default thereof to suffer additional RI for three months.
Under Section 376(2)(f)(j)(k) of	RI for twenty years, pay a fine of
Indian Penal Code.	Rs.5000/- and in default thereof to suffer additional RI for six months.

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Both the sentences were directed to run concurrently.

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Case of the prosecution, in brief, is that complainant, who is aunt of the prosecutrix – a 17 years old dumb girl, lodged a written report (Ex.P/10) to the effect that on 23.11.2018 while she was returning from the house of her sister, she saw sister of the prosecutrix looking for the prosecutrix. On sister of the prosecutrix calling out, she heard the voice of the prosecutrix emanating from the house of the accused/appellant. Thereafter, they stood there only and when she again called her out, they heard the clinking sound of bangles. Then she called out her at

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the door of his house and after some time when the backdoor opened, the prosecutrix came out weeping and she was very much afraid. The prosecutrix’s hair was disheveled, her clothes were dusty, she was holding her leggings in her hand and was shivering and therefore, seeing her condition, when she went inside the house of the accused/appellant, she saw that he was hiding himself and was zipping up his pant. The prosecutrix is a dumb girl, she told her about the incident through gestures that the accused/appellant cajoled her away to his house and committed rape on her. Thereafter, the complainant informed about this incident to mother and father of the prosecutrix as also to the persons in the vicinity. Based on this complaint, unnumbered crime for the offence under Sections 342, 376 of IPC and Section 4 of the POCSO Act, 2012 was registered against the accused vide Ex.P/11 at PS-Kanker and later on transferred to PS-Amabeda where Crime No.17/2018 was registered vide Ex.P/25.

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During the course of investigation, spot map and Nazri Naksha (Ex.P/12 & P/17) were prepared; after obtaining consent of parents of the prosecutrix (Ex.P/1), her medical examination was got done (Ex.P/2) and as per seizure memos Ex.P.3, P/5, P/7, P/12, P/26 to P/29 certain articles were seized. The seized articles were sent for examination to FSL, Jagdalpur from where report Ex.P/15 was obtained. After completion of whole investigation, charge sheet under Sections 342, 376 of IPC and Section 4 of the POCSO Act, 2012 was

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filed against the accused/appellant. Learned trial Court framed charges under Sections 342, 376(2)(f)(j)(k) of IPC and Section 4 of POCSO Act, 2012 against the accused, which were abjured by him and he prayed for trial.

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In order to substantiate its case the prosecution examined 12 witnesses. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, no witness was examined by him in his defence.

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After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal.

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Learned counsel for the appellant would submit that the impugned judgment is bad in law, perverse, erroneous and liable to be set aside. Learned trial Court failed to see that the appellant is roped in this offence due to previous enmity. The incident took place on 23.11.2018 at around 5.30 pm whereas report was lodged on 24.11.2018 at 6.10 pm and there is no explanation for this long delay. There are material contradiction and omission in the statements of the witnesses which makes the whole case concocted and doubtful. PW-1

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and PW-2, who are mother and father of the prosecutrix, have not supported the prosecution case and turned hostile. Medical evidence also does not lend support to the prosecution case. Even the prosecution has failed to prove that the prosecutrix was minor on the date of incident in accordance with law and various judgments of the Hon’ble Supreme Court in this regard. No certificate has been produced by the prosecution to prove disability of the prosecutrix. In fact, there is no legally admissible and clinching evidence on record to prove complicity of the appellant in the crime in question beyond reasonable doubt and the learned trial Court merely on the basis of conjecture and surmises has held the appellant guilty which is not sustainable in law. Therefore, the impugned judgment is liable to be set aside and the appellant be acquitted of all the charges by giving him benefit doubt.

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Reliance has been placed on the decisions in the matters of Dal Bahadur Darjee Vs. State of Sikkim, AIRONLINE 2019 SK 37; Vishwanath Kharia Vs. State of Jharkhand, 2024(3) AJR 228; Birju Nayak Vs. State of Chhattisgarh, ILR 2024 Chhattisgarh 972 ; and the judgment dated 25.10.2024 of this Court in CRA No.578/2020 in the matter of Nandu Yadav Vs. State of Chhattisgarh .

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On the other hand, learned counsel for the State supporting the impugned judgment submits that learned trial court minutely appreciated oral and documentary evidence on record and rightly

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convicted and sentenced the appellant. As such, this appeal being without any substance is liable to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the records of learned trial Court that the appellant was charged under Sections 342, 376(2)(f)(j)(k) of IPC and Section 6 of the POCSO Act, 2012, and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him as mentioned in para 1 of this judgment.

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Since the prosecutrix is a dumb girl, her statement was recorded with the help of expert/teacher of Govt. Deaf & Dumb School in question and answer form. PW-3 Karuna Meshram, Deaf & Dumb Speech Therapist/Teacher, states that the prosecutrix is not able to answer to her questions put to her in usual sign language. She states that the prosecutrix was only answering in affirmative to the questions. She states that she recorded the statement of the prosecutrix in question and answer form vide Ex.P/9. In cross-examination she states that she had came to the court with the prosecutrix with her statement u/s 164 of CrPC and at that time she stated that the prosecutrix is not able to tell through gestures. She admits that the prosecutrix has not studied in deaf and dumb school or got speech therapist, therefore, she cannot tell whether the prosecutrix understands sign language or not. She volunteers that though the prosecutrix does not understand

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her sign language but whatever she asks is replied by her by uttering “hmm” in affirmative by moving her neck up and down and when she answers in negative by uttering “No”, turns her neck left and right.

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PW-1 mother of the prosecutrix states that on the date of incident the accused confined the prosecutrix in a room and when the door opened she saw that there was no clothes on the body of the prosecutrix. When she informed about this to her husband, he went to the house of the accused, brought him to his house, tied both his hands and went to call the elderly villagers but before that, the accused escaped from there. She states that her daughter informed that when the prosecutrix came out of the house of the accused from the back door, she was weeping, was very much afraid, her hair was messy and clothes dusty and that she was holding her leggings in her hands and was shivering. She also informed that the prosecutrix was partly wearing underwear.

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PW-2 father of the prosecutrix also states that when the prosecutrix was brought back to the house by his daughter, he saw that hair of the prosecutrix was disheveled and when he asked her daughter about it, she could not tell anything out of fear. He went to the house of the accused, enquired from him, he was in fear and he did not tell him anything. He brought the accused to his house and after leaving him there went to call the elderly people of the village. However, the accused had escaped from there before he came back to

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the house. Thereafter on the next day report was lodged with the police.

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PW-4 neighbour of the prosecutrix also supported the statement of mother of the prosecutrix and stated that she went to the house of the accused and also heard cries of the prosecutrix. She states that despite her shouting repeatedly, the door was not opened and after some time, the accused opened the backdoor of his house and ousted the prosecutrix from there and that the prosecutrix came out weeping and trembling. When she (PW-4) entered the house from that door, she saw that the accused had hidden himself in the paddy bundles and on being asked, he replied that it is Mahendra and then came out from there. In cross-examination she denies all the adverse suggestions of the defence.

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PW-5 sister of the prosecutrix also states that when she shouted near the house of the accused, she heard the voice of the prosecutrix coming from his house and at that time her aunt also reached there for calling the guests. They knocked at the door of the accused and after some time, he ousted the prosecutrix from his house. The prosecutrix came out holding silex worn by her and there was dust on her head and back.

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PW-6 Dr. Hemlata Sahu medically examined the prosecutrix and opined that coitus has been done with her, she prepared the vaginal slide for further opinion after FSL report vide Ex.P/2. As per FSL report

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(Ex.P/15), on Article A (underwear of the prosecutrix), Article C (underwear of the accused) and Article D-1 (semen slide of the accused), stains of human sperms were found. On the basis of FSL report and medical report of the prosecutrix, she opined that the prosecutrix has been subjected to sexual intercourse vide Ex.P/16.

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The prosecutrix was also examined as PW-9. She answered the questions through gestures. Her statement was recorded with the help of expert/teacher of Govt. Deaf & Dumb School in question and answer form. From her statement it is noticed that through gestures she disclosed that while she was playing in the street, it is the accused/appellant who caught hold of her, took her to his house and committed rape on her. In cross-examination she also reiterated through gestures that the appellant committed rape on her.

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Close scrutiny of the evidence of the witnesses, particularly of PW-1 mother, PW-2 father, PW-5 sister of the prosecutrix, PW-9 prosecutrix and of independent witness PW-4, coupled with the medical evidence of PW-6 Dr. Hemlata Sahu and FSL report (Ex.P/15), it stands proved that it is the accused/appellant who confined the prosecutrix in her room and then committed forcible sexual intercourse with her. In his statement under Section 313 of CrPC, the accused instead of offering explanation to the incriminating circumstances appearing against them, simply made bald denial of them which further points towards his culpability. As such, learned trial Court also minutely

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appreciated the oral and documentary evidence and rightly convicted the appellant under Sections 342 and 376(2)(f)(j)(k) of IPC. The judgments cited by the appellant being distinguishable on facts are of no help to him.

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As regards age of the prosecutrix, learned trial Court on the basis of Dakhil-Kharij register found her date of birth as 8.6.2001. Mother and father of the prosecutrix stated that they don’t know date of birth of the prosecutrix but she is about 18 years old. PW-10 Narsingh Sori, Teacher, exhibited the Dakhil-Kharij register (Ex.P/20). He admits in cross-examination that he entered the date of birth of the prosecutrix as 8.6.2001 at the instance of her father and no document in support thereof was produced by him. He admits that when the prosecutrix was admitted to the school, she was older than other students.

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The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment as under:

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“40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of

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the girl in the absence of the material on the basis of which the age was recorded.

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48. 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 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 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

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20. 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:-

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“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.

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

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value.”

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15. 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.”

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21. In the case in hand, though in the Dakhil-Kharij register (Ex.P/20) date of birth of the prosecutrix is recorded as 8.6.2001 and as such, on the date of incident i.e. 23.11.2018, she appears to be below 18 years, however, her parents have, on the one hand, expressed ignorance about her date of birth and on the other, stated that she is about 18 years of age. The date of birth entered in the said register (Ex.P/20) is not proved in accordance with law. PW-10 Narsingh Sori, Teacher, states that he recorded the same at the instance of father of the prosecutrix who disclosed the same orally and no document was produced by him in support thereof. The prosecution has also not filed birth certificate or any other documents to substantiate that the prosecutrix was minor at the relevant point of time. Thus, in view of aforesaid judicial pronouncements, looking to the nature and quality of evidence adduced by the prosecution for proving minority of the prosecutrix, we are of the opinion that the prosecution has failed to prove that on the date of incident the prosecutrix was below 18 years

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of age. As such, no offence under the POCSO Act is made out against the appellant. However, as observed above, the appellant has rightly been convicted by the trial Court under Section 376(2)((f)(j)(k) of IPC. The minimum sentence prescribed thereunder is 10 years and therefore, looking to the facts and circumstances of the case, the age of the accused/appellant and that he has no criminal antecedents, this Court is of the opinion that sentence of RI for 10 years with fine thereunder would serve the ends of justice. The judgments cited by the appellant being distinguishable on facts are of no help to him.

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22. On the basis of aforesaid discussions, the appeal is allowed in part. While maintaining conviction of the appellant under Section 342 and 376(2)(f)(j)(k) of IPC, his conviction under Section 6 of the POCSO Act is hereby set aside. However, the jail sentence awarded by trial Court under Section 376(2)(f)(j)(k) of IPC is hereby reduced to RI for 10 years while keeping the fine imposed by trial Court with default sentence intact. The impugned judgment stands modified to the above extent only. The appellant is reported to be in jail, therefore, no order regarding his arrest, surrender etc. is required to be passed and he shall serve out the remaining part of his sentence.

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Digitally signed MOHD by MOHDAKHTAR KHAN AKHTAR Date: KHAN 2025.07.1116:52:06 +0530

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Sd/ Sd/ (Rajani Dubey) (Sachin Singh Rajput) Judge Judge

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Khan

Mahendra Jain v. the State of Chhattisgarh

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Mahendra Jain v. the State of Chhattisgarh

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