Bajrang Yadav Vs State of Chhattisgarh

This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 30.12.2021 passed in Special Sessions Case No. 27/2021 by the Learned Special Judge (FTSC), Sakti DistrictJanjgir-Champa (C.G.), whereby the appellants have been

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convicted and sentenced as under:-

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Appellant No. 1 convicted f	for the of	ffences as follows:-
Conviction		Sentence
Section 06 of POCSO Act	Rigorous years an i with defa	imprisonment for 20 d fine of Rs. 10,000/- ult stipulation.
Under Section 506 Part-II of	Rigorous	imprisonment for 01
IPC	year
Under Section 313/34 of IPC	Rigorous years an i	imprisonment for 05 d fine of Rs. 1,000/-
	with defa	ult stipulation.
Under Section 3 (2)(v) of	Imprison i	ment for life and fine
S.C./S.T. Act	amount	of Rs. 5,000/- with
	default st	ipulation.

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All the sentences were d Appellant No. 2 & 3 convict f Conviction	irected to run concurrently. ed for the offences as follows:- Sentence
Under Section 506 Part-II of	Rigorous imprisonment for 01
IPC	year
Under Section 313/34 of IPC	Rigorous imprisonment for 05 years and fine of Rs. 1,000/- with default stipulation.
Under Section 3 (2)(v) of	Imprisonment for life and fine
S.C./S.T. Act	amount of Rs. 5,000/- with default stipulation.
All the sentences were d	irected to run concurrently.

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Case of the prosecution in brief is that PW-2 mother of the

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prosecutrix lodged a written complaint at Police Station Sakti, stating that on 27.03.2020 her minor daughter (the prosecutrix PW-1) informed her that on 15.11.2019, at about 6:00 p.m., while she had gone to attend Nature’s call, appellant No.1 forcibly committed sexual intercourse with her on the pretext of marriage and threatened to kill her if she disclosed the incident to anyone. It is further alleged that in December 2019, appellant No.1 again committed sexual intercourse with the prosecutrix, as a result of which she became pregnant. Upon being informed of the pregnancy,

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appellant No.1, with the assistance of appellants No.2 and 3, administered certain medicines to the prosecutrix, causing termination of her pregnancy. It is further alleged that the appellants committed the aforesaid acts with the knowledge that the prosecutrix belongs to a Scheduled Caste.

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During investigation, caste certificate of prosecutrix was seized (Ex. P/32), with regard to date of birth of the prosecutrix Dakhil Kharij register of Class-I (Ex.P/10C) & Class-III (D/02C), Tatima (Ex. P/14C), Progress report (Ex.P/12) were also seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court.

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After framing the charges against the accused/appellants, the charges were read out and explained to the appellants, they pleaded innocence and expressed their intention to give evidence in their defence, but no defence witness was called to testify.

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In order to bring home the offence, the prosecution has examined 14 witnesses in its support. Statement of the

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accused/appellant under Section 313 Cr.P.C was recorded, wherein they have pleaded their innocence and false implication in the matter.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30.12.2021 convicted and sentenced the appellants as mentioned in paragraph one of this judgment. Hence, this appeal.

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Learned counsel for the appellants submits that the appellants have been falsely implicated in the present case. He would submit that the learned trial Court failed to appreciate that the prosecution failed to establish the case beyond reasonable doubt and also submitted that the prosecution has not proved the case by independent and reliable witnesses. He further submits that learned trial Court erred in ignoring that the prosecution has failed to prove that the prosecutrix was minor on the date of alleged incident and the appellants/accused have committed any criminal act against her will. Learned counsel further submits that learned trial Court erred in ignoring that the prosecution has failed to

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adduce any evidence that the appellant/accused have given some medicine to her therefore her pregnancy was terminated. He lastly argued that learned trial Court wrongly convicted and imposed sentence upon the appellants/accused without required legal proof of the ingredients of the aforesaid offences, therefore the conviction and sentence imposed on the appellants is liable to be set aside.

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Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed.

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

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The first question arises before this Court whether the victim was minor on the date of incident or not?.

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The Victim (PW/1) in her deposition has stated that she had studied up to class III, that they were four sisters and one

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brother, and that she was the youngest among them. She further stated that her date of birth is 28.02.2005.

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(PW/2) mother of the prosecutrix has stated that on the date of incident prosecutrix was aged about 16 years. In her crossexamination she has admitted that she had four daughters and one son, and the prosecutrix was her fifth daughter. She stated that, except for the prosecutrix, her son and daughters were married. She further stated that her eldest daughter was married in 2016 and that the daughter born after the prosecutrix was married four years ago. She stated that there was an age difference of about 20 months between the daughter who was just elder to the prosecutrix and the prosecutrix, and the said elder daughter was currently 22 years old.

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PW/4 Smt. Mongra Kawar posted as Teacher in the Primary School has stated in her statement that the Tatima was filled for the birth certificate. She admitted that the complainant was admitted to their school in Class 1 and again in Class 3, and that the Tatima form was filled at the time of admission in both classes. She further stated that in Tatima No. 674 dated

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27.09.2010, which pertains to Class 1, the date of birth of the complainant was recorded as 28.02.2005, as informed by the relatives of the complainant. She stated that the Tatima form filled at the time of admission in Class 3 and in the said Tatima for Class 3, the date of birth was recorded as 28.02.2004. She admitte that there was a difference of one year in the date of birth mentioned in the Tatima form of Class 3 and that of Class 1. The witness stated that the date of birth in the Class 3 Tatima (Ex. P/14) had been recorded as stated by the guardian of the prosecutrix. She has stated that prosecutrix elder sister is recorded as 19.08.2004 and the date of birth of the prosescutrix in class- 1 is also 0f 2004, there is not even a difference of one year between the two sisters, hence the difference has been made in the date of birth of the victim/prossecutrix. She further stated that if the said date of birth had been stated incorrectly by the guardian, she could not say anything about it. She further admitted that in the Class 1 record, the date of birth originally written as 28.02.2004 had been whitewashed and corrected. She stated that the said date of birth had been recorded as per the information given by the parents of the complainant. She

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further stated that Dakhij Kharij No. 674/A for the session 2013–14 pertains to Class 3, in which the date of birth was recorded as 28.02.2004, which had been corrected from the earlier entry of 28.02.2005 and she had recorded the date of birth as per the information provided by the victim’s parents. Perusal of the aforesaid statements of the witnesses would show that she had recorded the date of birth as per the information provided by the victim’s parents.

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

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"40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 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 date

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of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

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

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

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the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

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

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

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

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We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the

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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;

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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 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

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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,

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

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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. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

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XXXX XXXX XXXX

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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

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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

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the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance.

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33.6. That it is neither feasible nor desirable to lay down an abstract formula

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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

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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

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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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16. Recently, in case of P. Yuvaprakash Vs. State represented by

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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 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

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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

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person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."

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Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

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"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i)

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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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Thus, the evidence brought on record by the prosecution with

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regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in

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the above judgment.

The next question for consideration would be whether the appellant No. 1 has committed rape upon her or not.

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PW/1 victim in her cross-examination stated that on 15.11.2019, in the evening, she had gone to the field to defecate when accused accused/appellant No. 1 forcibly raped her, threatening to kill her and set ablaze her house if she disclosed the incident. She further stated that until December 2019, the accused repeatedly called her to the field under threats and committed rape on each occasion. In March 2020, when her menstruation stopped and she informed accused/appellant No. 1 , he initially said he would marry her. However, on 26.03.2020, he took her to his village Tiur, where his uncle Haran Yadav (Appellant No.2), aunt Sumitra Bai (Appellant No.3), and his mother were present, and refused marriage on the ground of her caste. Haran Yadav and Sumitra Bai then restrained her while accused/appellant No. 1 forcibly administered abortion pills, threatening to kill and bury her if she resisted. She further stated that on 27.03.2020, the accused left her at her village Bhadripali, where she

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suffered a miscarriage. After disclosing the incidents to her mother, Radhika, a report was lodged at Sakti Police Station, following which she was medically examined at CHC Sakti and her blood sample was collected in Janjgir for DNA testing.

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(PW/2) mother of the prosecutrix in her deposition has stated that she knew the accused accused/appellant No. 1 but did not know the other accused, Haran Yadav and Sumitra Bai. At the time of the incident, the prosecutrix was about 16 years old. Upon asking the prosecutrix why she was crying prosecutrix stated that around November, 2–3 years prior, the prosecutrix had been raped by accused accused/appellant No. 1 under threats of death if she disclosed the matter, due to which she remained silent. On 27.03.2020, when the prosecutrix was in pain, she revealed that the rape had resulted in pregnancy. The prosecutrix further stated that, upon informing accused/appellant No. 1 of her pregnancy, he took her to his village Tiur on 26.03.2020, initially saying he would marry her, but later refusing on the ground of her caste. His uncle and aunt, Haran Yadav and Sumitra Bai, also objected to the marriage for the same reason. She further stated that Haran Yadav and Sumitra Bai restrained her while

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accused/appellant No. 1 forcibly administered abortion pills. On 27.03.2020, accused/appellant No. 1 left her at Sivana, Bhadripali, from where she returned home and subsequently suffered a miscarriage. Thereafter, she along with her husband and the prosecutrix, lodged a written report at Police Station Sakti.

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In her cross examination she has stated that that the prosecutrix had not told her anything about the incident in November 2019. She further stated that she did not know where she was on 26.03.2020, but after returning, she informed her that accused/appellant No. 1 had taken her to Tiur, saying he would marry her. She also stated that they had not reported her absence on 26.03.2020 as they were making inquiries and thought she might have gone to her grandfather’s house.

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Dr. Kiran Binjhwar (PW/5) in her statement stated that after examining the victim, she did not find any mark of struggle that should have been made during commitment of rape on any part of her body. She also stated that hymen membrane to be old; and she has not given any opinion about the recent

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sexual intercourse and FSL report is also found negative and she has opined that during his examination, she did not find any symptoms indicative of abortion in the victim, and that if an abortion had occurred, it would have been evident in the examination. Thus, the witness did not observe any symptoms related to abortion. she further stated that he had examined the complainant on 22.04.2020, and the complainant had informed that her abortion had taken place on 27.03.2020.

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The DNA report (Ex.P-23) dated 29.07.2021 reveals that the DNA profile of the fetus (Exhibit A) (73/21) matched that of the blood of victim (Exhibit B) (413/21) but did not match the DNA profile of accused Bajrang Yadav (Exhibit C) (414/21).

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Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant No. 1 has committed rape upon her. Thus, it cannot be said that the appellant committed the offence.

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So far as appellant No. 2 & 3 is concerned, the mother of the victim has only lodged the FIR against the appellant No. 1 on 22.04.2020. Subsequently, taken the name of appellant No. 2

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and appellant No. 3 in 161 Cr.P.C. Statement, but no material and cogent evidence has been found against the appellant

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No. 2 & 3, that in connivance with the appellant No. 1 administered certain medicines to the prosecutrix, causing the termination of her pregnancy. In fact, no overt act is said to have been caused by these appellants.

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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, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellants beyond reasonable doubt, which the prosecution has failed to do in the instant case.

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For the foregoing reasons, the prosecution has not proved that the appellant No. 1 had forcefully made corporeal relation with the victim, and from the evidence of the victim the same creates doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, I am of the view that the appellant No. 1 is entitled to be acquitted.

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The accused/appellants are acquitted of the charges for which they were tried. The appellant No. 1 is in jail. He be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.25,000/- with one surety each in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 481 of the BNSS. The appellant shall appear before the higher Court as and when directed.

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The appellant No. 2 & 3 are reported to be on bail. Their bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. The appellant Nos. 2 & 3 appear before the higher Court as and when directed.

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Accordingly, the Criminal Appeal is allowed .

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The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

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Sd/- Sd/-

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(Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Shoaib/Gowri

Bajrang Yadav v. State of Chhattisgarh

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Bajrang Yadav v. State of Chhattisgarh

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