Sumit Jaisawal Vs State of Chhattisgarh

by the appellant, calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 14.12.2021 passed by the Additional Sessions Judge, Fast Track Court, Raigarh (CG) in Special Criminal Case under the Pocso Act 22/2019, by which, the appellant has been convicted and sentenced as under :-

¶20

Conviction	Sentence
Under Section 363 of	RI for 4 years and to pay a fine
the IPC	of Rs.5000/-, in default of payment fine, RI for 3 months
Under Section 366 of	RI for 7 years and to pay a fine
the IPC	of Rs.10,000/-, in default of payment of fine, to under RI for 6 months
Both the sentences were	directed to run concurrently.

¶21

Case of the prosecution, in brief, is that on 27.2.2019, the appellant abducted the minor prosecutrix (PW-1), aged about 16 years, from the lawful custody of her guardian under the pretext of marriage, and took her at Kharsia and Bandori with the intent to commit illicit sexual intercourse. The father of the prosecutrix (PW-4) lodged an FIR (Ex.P/10) at Police Station, Raigarh Kotwali on 27.2.2019 at about 11:30 p.m., stating that on the said date, at about 5:00 p.m., his daughter (PW-1) had gone for tuition, but did not return home thereafter.

¶22

3

¶23

Accordingly, an offence has been registered against unknown persons. On the following day i.e. 28.2.2019, the prosecutrix was recovered from the house of the complainant vide Ex.P/9. She narrated the incident and her statement was recorded under Section 164 of the Cr.PC vide Ex.P/4. Counselling was also conducted vide Ex.P/3. Crime detail form and spot map was prepared vide Ex.P/1. The school admission register (Ex.P/7C) and Class IX marksheet of the prosecutrix (Ex.P/8) were collected, in which her date of birth has been mentioned as 27.8.2003. The memorandum of the appellant was recorded vide Ex.P/12 and one scooty was seized vide Ex.P/13. The prosecutrix was medically examined

¶24

by Dr. Jyoti Ekka (PW-8), who submitted her report vide Ex.P./14. No external injuries were found on the prosecutrix; however, she complained of pain in her left leg.

¶25

The statements of the witnesses were recorded. After completion of the investigation, the charge sheet was filed. During trial, the appellant abjured his guilt and claimed to be tried. In order to prove its case, the prosecution has examined as many as 10 witnesses and exhibited 17 documents vide Ex.P/1 to Ex.P/17.

¶26

In the statement recorded under Section 313 of the Cr.P.C., the accused/appellant stated that he has been falsely

¶27

4

¶28

implicated. The accused/appellant exhibited two documents vide Ex.D/1 and D/2, however, did not adduce any oral evidence.

¶29

After appreciation of the evidence, the concerned Court convicted the appellant by the impugned judgment as mentioned in the opening paragraph of this judgment.

¶30

Learned counsel for the appellant submits that the prosecution has utterly failed to prove that the prosecutrix was a minor on the date of the incident. He would further submit that the prosecutrix was a consenting party and had voluntarily accompanied the appellant on his motorcycle. Therefore, the trial Court was absolutely unjustified in recording the conviction. Learned counsel for the appellant lastly prays that the appeal be allowed and the conviction and sentence awarded to the appellant be set-aside.

¶31

On the other hand, learned counsel for the State would support the impugned judgment. He submits that the impugned judgment is well merited and does not call for any interference.

¶32

Heard learned counsel for the parties and also perused the record with utmost circumspection.

¶33

The first question that arises before this Court is whether the prosecutrix (PW-1) was minor on the date of the incident i.e.

¶34

5

¶35

on 27.2.2019. In this regard, the prosecution has proved two documents : School Admission Register (Ex.P/7C) and Class IX marksheet of the prosecutrix (Ex.P/8), in which her date of birth is recorded as 27.8.2003. During cross-examination, the School Principal (PW-2) categorically admitted that she was not aware of the basis on which the date of birth of the prosecutrix was recorded as 27.8.2003. Furthermore, at the time of her deposition, she had not produced any document on the basis of which the said entry had been made. The father of the prosecutrix (PW-4) also admitted in para 19 that he orally informed the school at the time of admission of the prosecutrix that her date of birth is 27.8.2003. He further admitted that he did not submit any document in respect of the subject entry at the time of admission. His deposition regarding the prosecutrix’s date of birth as 27.8.2003 was solely based on the school record. The mother of the prosecutrix (PW-6) categorically admitted that they have no documents pertaining to the date of birth of the prosecutrix.

¶36

From the aforesaid evidence, it is apparent that the prosecution has established the date of birth of the prosecutrix solely on the basis of assumption or presumption.

¶37

11.The Supreme Court in the matter of Manak Chand alias Mani vs. 1

¶38

State of Haryana , has reiterated the law laid down by it in the

¶39

1 2023 SCC Online SC 1397

¶40

6

¶41

matter of Birad Mal Singhvi vs. Anand Purohit 2 and observed

¶42

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 of the same, it cannot be relied upon. For the sake of brevity, para No. 14 & 15 of the judgment are reproduced hereunder:-

¶43

“ 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.

¶44

“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 value.”

¶45

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

¶46

2 1988 (Supl.) SCC 604

¶47

7

¶48

neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.”

¶49

In the case of P. Yuvaprakash vs. State Rep. By Inspector of Police 3, the Hon'ble Supreme Court observed in para 13 as under:

¶50

“ 13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:

¶51

(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;

¶52

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (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.”

¶53

In light of the aforesaid decisions of the Hon’ble Supreme

¶54

Court, this Court is of the considered opinion that mere statements of the parents regarding the date of birth of the prosecutrix are not sufficient, as the prosecution has utterly

¶55

failed to produce any clinching and legally admissible

¶56

3 AIR 2023 SC 3525

¶57

8

¶58

evidence to prove that the prosecutrix (PW-1) was a minor on the date of the incident.

¶59

Moreover, the prosecutrix (PW-1) in her cross-examination in para 12 categorically admitted that when the appellant asked her to sit on the motorcycle, she did not raise any objection nor inform the tuition teacher that the appellant was taking her forcibly. Although this witness has deposed that she tried to shout, she did not do so because the appellant had extended threat to her.

¶60

Taking into consideration the conduct of the prosecutrix (PW1), who travelled on the motorcycle of the appellant to various places, including from Raigarh to Bandori, and also considering that no other injury was found except for her complaint of pain in the left leg during the medical examination, this Court cannot infer that she was not a consenting party.

¶61

Evidently, the prosecutrix voluntarily accompanied the appellant for roaming. Furthermore, since the prosecution has failed to prove that that the prosecutrix was a minor on the date of the incident, the necessary ingredients to attract the offence under Section 363 and 366 of the IPC are also missing.

¶62

9

¶63

In view of the foregoing discussion, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 363 and 366 of the IPC are set-aside and he is acquitted of the said charges. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months in view of the provisions contained under Section 437-A of the Cr.P.C.

¶64

Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith.

¶65

Sd/-

¶66

( Deepak Kumar Tiwari)

¶67

Judge

¶68

Shyna

Sumit Jaisawal v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sumit Jaisawal v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Aarifa Khan Vs Sheikh Shahid

Anish Ahmed Khan Vs Gulam Nabi Qureshi

Jitendra Kumar Lahare Vs Yashwant Chandravanshi

Nirmal Kumar Varandani Vs State of Chhattisgarh

Sourabh Gendle Vs State of Chhattisgarh

J. S. Bhatia Vs Vicky Auto-Mobiles