Dharmendra Nishad Vs State Of Chhattisgarh

1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant I, therefore, requested for assistance from a Counsel of the High Court Legal Aid Services Committee, Ms. Sameeksha Gupta, Advocate has been nominated to assist the Court.

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2. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate, Ms. Sameeksha Gupta

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through the High Court Legal Services Committee and learned State Counsel. In view of (2014) 14 SCC 222 (Surya Baksh Singh v. State of Uttar Pradesh) , I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as his interest has been duly taken care of by nominating another Counsel from the High Court Legal Services Committee.

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3. The appellant has filed the instant appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 29.03.2016 (Annexure A-1) passed in Special Sessions Case No.08/2015 by which the Special Judge (Protection of Children from Sexual Offences Act), Saraipali, District Mahasamund (C.G.) has convicted and sentenced the appellant as under:

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Conviction	Sentence	In Default of Payment of Fine
Under Section 456 of the IPC	RI for 03 years and fine amount of Rs.2,000/-	Additional SI for 02 months
Under Section 08 of	RI for 03 years and fine	Additional SI for 02
the POCSO Act, 2012	amount of Rs.2,000/-	months

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(Both sentences shall run concurrently)

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4. Case of the prosecution, in short, is that on 18/01/2015, prosecutrix and her father appeared at the Saraipali Police Station and jointly lodged a written compliant against the accused, stating therein that on 15.01.2015

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at about 11 PM, parents of the prosecutrix after having dinner were sleeping on the same cot in a room of their house, when two persons entered the room and with the intention of dishonouring them, forcibly held the hands of the prosecutrix and tried to rape her. Then, these people shouted, hearing their shouts, their elder father, who was sleeping in the adjacent room, came and caught both the persons. On hearing their noice, the neighbours also came to their house. On enquiry made by the villagers, the two persons caught told their names as Dharmendra of village Jamdi, Police Station Basna and Shanta Vishwakarma of village Jalki Korba, who had come to their village to erect an electric pole. Those persons left the motorcycle on which they had come and ran away.

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5. On the basis of above mentioned, the matter was reported against the accused in the Police Station Saraipali. The crime was registered under Sections 354, 456, 34 and Section 08 of the Protection of Children from Sexual Offences Act, 2012. After completion of investigation, the charge sheet was filed in the Court of Additional Sessions Judge, Fast Track Court, Mahasamund (C.G.).

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6. In order to establish the charge against the appellant, the prosecution has examined as many as 11 witnesses. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case. However, no defence witness has

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been examined in his defence.

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7. After appreciation of evidence available on record, learned trial Court has convicted the appellant and sentenced him as mentioned in paragraph 03 of this appeal. Hence this appeal by the appellant.

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8. Learned counsel for the appellant contended that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. He further contended that the learned trial Court’s decision disclosing the fact that he has not considered properly, the evidence available on record corroborating the fact about noninvolvement in the crime by the appellant. This being on show face of the record judgment for convictions against the appellant was passed on the non-consideration of the evidence of the case. The learned trial court has erred in passing of judgment of conviction and sentence against the appellant without any legal evidence in the case and whole judgment disclosing the fact that the findings arrived in the judgment are based on inferences and conjunctures and suspicion not allowed to be prevailed by passing the judgment in criminal trial. In view of the facts and grounds and without there being any sufficient, cogent and clinching evidence/material available on record, the alleged offences of the IPC and the POCSO Act are not made out against the appellant, therefore, it is prayed that judgment of conviction and sentence (Annexure A-1) may be set aside and the appellant may be acquitted from the charges levelled

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against him.

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9. Per contra , learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference.

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10. I have heard learned counsel for the parties, and perused the record with utmost circumspection.

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11. In order to consider the age of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the admission/discharge register of Class 9^th (Article A-C), wherein date of birth of prosecutrix is mentioned as 21.09.1999. Prosecutrix (PW-1) has stated in her deposition that her date of birth is 21.09.1999 and she is aged about 15 years at the time of incident.

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12. Premanand (PW-6), Headmaster of the Government Higher Secondary School, Dularpali has stated that in the admission/discharge register of Class 9^th (Article A-C), date of birth of prosecutrix is mentioned as 21.09.1999. In his cross-examination, he stated that on the basis of transfer certificate of Class 8^th , he endorsed the date of birth of the prosecutrix in the admission/discharge register.

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13. Section 94 of the Juvenile Justice (Care and Protection of Children) Act,

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2015 provides for presumption and determination of age. The same reads as under :

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“94. Presumption and determination of age .— (1)

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Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

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14. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC-385 , the Hon'ble Supreme Court has held that the transfer certificate which is issued by 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 the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date 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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15. In paragraphs 40, 42, 43, 44 and 48 of its judgment in Alamelu (Supra),

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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 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

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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 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 Jaiswal, 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 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 (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

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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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16. There is no birth certificate issued by the Corporation or Panchayat has been produced regarding date of birth of prosecutrix. There is no transfer certificate of Class 8^th or ossification test of the prosecutrix has not been conducted. There is no legally admissible evidence with regard to age of prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of the above, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence.

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17. As per evidence of the prosecutrix (PW-1) and cousin sister of the prosecutrix (PW-2), it is crystal clear that on the date of incident, i.e. 15.01.2025 at about 11:00 PM, the prosecutrix and her cousin sister were sleeping in the house and at that time, the appellant along with other accused entered into house of the prosecutrix and tried to outrage the modesty by touching the body of the prosecutrix, therefore, PW-2 is the eye witness of the incident and there is clinching evidence to prove that

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the accused has trespassed the house of the prosecutrix and outraged her modesty.

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18. There is no material contradictions and omissions in the examination of the witnesses nor there is any ground to disbelieve that the appellant has been falsely implicated in this case. Looking to the above, and keeping minute observation of the evidence available on record, I found that the learned trial Court has rightly convicted the appellant under Section 456 of the IPC, therefore, I uphold the conviction under Section 456 of IPC as recorded by the learned trial Court.

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19. Though the prosecution has not been proved that at the time of incident, the age of the victim was below 18 years and she was minor. However, the prosecution is able to prove that the accused has used criminal force against the victim intend to outrage her modesty. Therefore, conviction under Section 8 of the POCSO Act is not made out against the appellant. However, prosecution has able to prove that the accused has entered in the house of the victim and touched her body with intent to outrage her modesty, therefore, the act of the appellant falls under Section 354 of IPC, therefore, conviction of the appellant under Section 8 of the POCSO Act is altered into Section 354 of IPC and sentenced to undergo rigorous imprisonment for one year.

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20. In the result, appeal is allowed in part. While convicting the appellant for the offence punishable under Sections 456 and 354 of IPC and

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sentenced to undergo rigorous imprisonment for 01-01 year. Both sentences shall run concurrently and the fine amount imposed upon the appellant shall remain intact.

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21. With the aforesaid observations, the instant appeal is partly allowed to the extent shown above.

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22. Records of the Court below be sent back along with copy of this judgment for information and necessary compliance.

Sd/-

(Arvind Kumar Verma)

Judge

Vasant

Dharmendra Nishad v. State Of Chhattisgarh

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Dharmendra Nishad v. State Of Chhattisgarh

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