Sandeep Kumar Vaishya Vs State of Chhattisgarh

The appeal is directed against the judgment of conviction and sentence dated 24.01.2023 passed by the learned Upper Session Judge, Fast Track, Special Court, Surajpur, District Surajpur, C.G. in Special Session Case No. 47/2019, whereby the appellant has

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been convicted as under:-

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Conviction	Sentence
Under Section 363 of IPC	R.I. of 04 years and fine of Rs. 200/- in default of payment of fine to further undergo R.I. for a period of 06 months.
Under Section 366 of IPC	R.I. of 06 years and fine of Rs. 200/- in default of payment of fine to further undergo R.I. for a period of 06 months.
Under Section 6 of POCSO	R.I. of 20 years and a fine of Rs. 200/- in default of payment of fine to further undergo R.I. for a period of 06 months.

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In the case at hand, three accused persons were tried, however, two of them namely; Purushottam Singh & Mahendra Singh have been acquitted and the appellant herein has been convicted and secerned by the impugned judgment.

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Case of the prosecution is that on 09-07-2019, the father of Prosecutrix/Victim lodged a written complaint to the police station Chandni, District-Surajpur (CG) that his minor daughter went somewhere with some 4-5 unknown persons on 07-07-2019. On the basis of complaint made by Complainant F.I.R. was registered bearing Crime 41/2019 offence punishable under section 363 of Indian Penal Code. During the course of investigation the minor prosecutrix was recovered where she disclosed that the present appellant/accused with other co-accused named Purshottam

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singh and Mahendra Singh kidnapped and abducted the prosecutrix and the present appellant committed forceful intercourse with here more than once.

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In order to bring home the above-stated offence, the prosecution examined as many as 10 witnesses and exhibited 30 documents. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he has pleaded his innocence and false implication in the matter.

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After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence these appeals.

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(a) Learned counsel for the appellant submits that the appellant

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has been falsely implicated in the present case. They further submit that the prosecution has miserably failed to prove the actual age of the victim and it was also not proved from the dakhilkharij register that on what basis, date of birth of victim was registered in dakhil-kharij register. It is submitted that the entire incident is highly doubtful and is based on conjuncture and surmises. They further submit that there are material contradictions and omissions in the 164 and in the Court statement of the victim. They further submit that the fact of penetration has not been proved and thus the benefit of doubt be given to the appellant and the conviction of the appellant is not sustainable and he may be

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acquitted of the charges framed against him.

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(b) Learned counsel further submits that the victim was a major and consenting party. He would submit that at the instance of victim one more criminal case bearing ST No.24/2019 was registered against the appellant. The said sessions trial culminated into conviction of the appellant, which is also under challenge in CRA No.492/2023. Thus, looking to the repetition of alleged offence itself shows that the victim was major on the date of incident and she is a consenting party to the alleged act, therefore, no offence under Section 6 of the POCSO Act is made out against the appellant.

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On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the victim and other witnesses are fully reliable. There are sufficient evidence available on record to hold that the appellant is guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference.

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

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The first and foremost question arose for the consideration would be whether the victim was minor and less than 18 years of age on the date of incident or not ?

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In order to consider the age of the victim, we have examined the evidence available on record.

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The victim (PW-1) has stated in her evidence that she has studied till Class 5^th. Further in her cross examination she has stated that she don’t know her date of birth. PW-2 mother of the victim stated in their cross examination that she don’t know the age of the victim and further stated that they are not educated and they write the Date of Birth on the basis of assumption.

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PW-3 Swatantra Prasad Gupta, Assistant Teacher of the school has deposed in his statement that the Dakhil Kharij Register (Ex.P-8/C) was seized by the police from him. He deposed that in the dakhil-kharij register, the date of birth of victim has been mentioned as 01.03.2005. In cross-examination, he has admitted that the entries in the said register with regard to date of birth of the victim has been done on the basis of assumption made by her 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

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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 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

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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 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

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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 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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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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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

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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.

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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 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 scrutinised 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 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

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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 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 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

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94(2) of the JJ Act, 2015."

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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 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 thedescription 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 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

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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 fromthe 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 threejudge 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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Reverting to the facts of the present case, the victim has stated in her deposition that she has studied till 5^th and do not know her date of birth and in the dakhil-kharij register the date of birth of victim is mentioned as 01.03.2005. PW-2, mother of victim has deposed that birth certificate of victim is not made and on assumption the date of birth of victim is mentioned in the dakhil-

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kharij register. The Assistant teacher of the school namely Swatantra Prasad Gupta, where the victim was studying, has stated that though the date of birth recorded in the register is 01.03.2005, but it is on the basis of assumption.

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Except for these evidences, no other evidence like ossification test report have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses victim, mother of victim and also Dakhil Kharij Register (Ex.P-08C) are not sufficient to hold that the victim was minor on the date of incident because of the reason that the date of birth mentioned in Dakhil Kharij Register is on assumption and no date of birth certificate is produced. There is every possibility that the date of birth of the victim was recorded in the Dakhil Kharij Register on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the victim in both the cases are not of that sterling quality which is sufficient to determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident in both the cases, yet the learned trial Court held her minor.

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The next question for consideration would be whether the appellant has committed rape upon her or not.

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Victim (PW-01) stated that in her examination in chief that the incident happened last Baishakh, while she was going to Sandeep Vaish's house to cut mustard the accused was hiding under a tree and on the path the accused caught her, tied her mouth with his gamchha and did wrong thing (rape) with her. At the same time her brother was following her and saw the accused doing wrong thing then the accused ran away.

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As the version of witness was not supported by the prosecution story, she was declared hostile. She stated in her cross-examination that on Sunday, 07.07.2019 at 11:00 pm she went out of her house with her aunt to answer the nature call. Then Sandeep and two other people of village came from behind and Sandeep caught her from behind and the other co-accused caught her leg and were taking her towards the road. When she raised alarm, these people tied her mouth with dupatta. She further stated that her aunt tried to free her but those people shook her off and parked the motorcycle on the road side. They started forcing her to sit in the vehicle. Then those people said that sit or else they will kill. Thereafter, they took her on a motorcycle to village Bargawan and accused Sandeep took her to Jabalpur by train and kept her in a room where Sandeep used to work and Sandeep forcibly made sexual relation with her. Made sexual relation means that accused Sandeep raped her. It is correct to say that when she started crying and said that she will

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die, Sandeep brought her to the village and left her. The same version of prosecution story has been stated in his statement of 164 of Cr.P.C.

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PW-4 Dr. Teras Kanwar stated that she has examined the victim and on examination it was found that the victim was physically and mentally normal. There were no marks of any kind of injury on the body and secondary sexual characteristics were developing. After internal examination,it was found that the size of the uterus was normal two pieces of vaginal slide and panty were handed over and advised them to conduct FSL examination. She further stated that in her opinion there were no signs of immediate intercourse. Her report is Ex.P. 14. Further in FSL report Ex. P-28 is negative and states that no human sperm was found on Article ‘A & B’.

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From the aforesaid evidence led by the prosecution, it is apparent that the victim has changed his version of the statement from time to time. If the victim’s statement vary significantly on crucial details of the alleged offense, it create reasonable doubt. Such type of act of the Victim does not inspire confidence over the credibility of the statement of the Victim.

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It is pertinent to mention here that at the instance of victim one more criminal case bearing ST No.24/2019 was registered against the appellant. In the said sessions trial the appellant herein has been convicted and the said conviction is under challenge in CRA

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No.492/2023. Thus, looking to the repetition of alleged offence also shows that the victim was major on the date of incident and she is a consenting party to the alleged act, therefore, no offence under Section 6 of the POCSO Act is made out against the appellant.

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Upon considering the entire evidence available on record, this Court found that there are major contradictions and omissions in the statement of the Victim, which does not inspire confidence over the credibility of her statement because she had given statement under Section 164 Cr.P.C contradictory to her statement given before the trial Court, which in the opinion of this Court, seems unreliable.

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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 appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

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For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt.

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In the result, the appeal is Allowed . The impugned judgment of

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conviction and sentence dated 24.01.2023 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case.

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Keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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

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SD/SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Jyoti/ Gowri

Sandeep Kumar Vaishya v. State of Chhattisgarh

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