Kumod Sunani Vs State Of Chhattisgarh

1. This appeal under Section 374 (2) of the CrPC arises out of the judgment of conviction, and order of sentence dated 07.04.2017 passed by the learned Additional Sessions Judge, FTC Korba, district-Korba in Special ST-19 of 2016, whereby the appellant has been convicted and

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sentenced as under :

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Conviction Under Section 363 of the IPC	Sentence RI for 3 years and fine of Rs.1,000/- in default of payment of fine amount, 6 months additional RI
Under Section 366-A of the IPC	RI for 5 years and fine of Rs.1,000/- in default of payment of fine amount 1 years additional RI

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Under Section 12 of the Protection RI for 3 years and fine of Rs.1,000/in default of payment of fine amount, of Children from Sexual Offences 6 months Additional RI Act, 2012 All the sentences to run concurrently

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2. Brief facts of the case are that on 06.02.2016, father of the victim PW1 lodged a missing report Ex.P.1 at Police Station- Manikpur to the effect that his minor daughter is missing since 04.02.2016 at about 4 pm, and her whereabouts could not be traced out despite her search at various places. Based on the written missing report, Dehati Nalishi Ex.P2 was recorded by the police for the offence under Section 363 of the IPC and the police started investigation. On 28.7.2016, during patrolling, the Police have recovered the victim along with the appellant and recovery panchnama Ex.P5 was prepared. The victim was sent for her medical examination to the District Hospital, Korba, where she was medically examined by PW9 Dr KB Sonkar, who after examining her, gave report vide Ex.P4, while medically examining the victim, the doctor had not noticed any external injury on the body of the victim and he opined that she is habitual to sexual intercourse and advised her for USG test and UP test examination for determination of pregnancy. She also referred for radiologist for her age determination. Two slides of her vaginal swabs were prepared, sealed and handed over to the police for their chemical examination. With respect to the age and date of birth of the victim, the Police has seized the School Admission and Discharge register from Sarswati Shishu Mandir, Higher Secondary School, Korba East, and after retaining attested true copy of the same, original register was returned to

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the school and copy of the school register is Ex.P10C. FIR Ex.P16 was registered, spot map Ex.P18 was prepared by the police. The appellant was arrested on 31.07.2016 and he too was sent for his medical examination to the District Hospital, Korba, where PW1 Dr.Ghanshyam Diwan had medically examined him. While examining the appellant, doctor has not noticed any external injury on his body and opined that he finds nothing to suggest that the appellant is incapable to penetrating sexual inter course and his report is Ex.P13.

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3. The statement of the witnesses under Section 161 of the CRPC have been recorded. The statement of the victim under Section 164 of the CRPC has also been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for commission of offence under Sections 363, 366A and 376 of the IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) before the learned trial court.

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4. The learned trial court has framed charge against the appellant for the offence under Section 363, 366A, 376 of the IPC, and Section-4 of the POCSO Act. The appellant abjured his guilt and claimed trial.

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5. In order to establish the charge against the appellant, prosecution has examined as many as 14 witnesses, statement of the appellant under Section 313 of the CRPC has also been recorded in which he denied the circumstances appearing against him and pleaded

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innocence and submitted that he has been falsely implicated in the offence.

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6. After appreciation of oral as well as documentary evidence led by the prosecution, the appellant has been convicted by the learned trial court as mentioned in the earlier part of the judgment of this appeal, hence this appeal by the appellant.

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7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond any reasonable doubt. There is sufficient omission and contradictions in the evidence led by the prosecution witnesses. Even, the evidence of victim has not been supported by her 161 and 164 CRPC statements. There is no cogent and clinching evidence with respect to the age and date of birth of the victim, that on the date of incident she was minor, and less than 18 years of age. The school register has not been proved in accordance with law and the basis on which her date of birth was recorded which has also not been produced by the prosecution. He would further submit that although the appellant has been acquitted by the learned trial court for the offence of Section 376 of the IPC, but he has been erroneously convicted for the offence under Section 12 of the POCSO Act, as there is no ingredients in deposition of the victim about sexual harassment by the appellant. It is also submitted by him that the victim herself, on her own will had gone to Jharsuguda, and she herself made telephonic call to the appellant and there is no material which demonstrate that the appellant

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kidnapped her, or procured her in order to engage in any illicit intercourse with her, therefore, no offence against the appellant is made out and the appellant is entitled for acquittal.

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8. On the other hand learned counsel for the appellant would submit that there is sufficient evidence in the case. But for minor omissions and contradictions, the evidence of the prosecution witnesses are fully reliable and conviction of the appellant can be made on that basis. From the document Ex.P10C, age of the prosecution is proved that she was minor on the date of incident. He would also submit that from the mark-sheet of the victim of class-IV (article A), the entries of school register are supported that she was minor on the date of incident. The appellant kept away the victim from her lawful guardianship and from the evidence of the victim herself she was residing with the appellant as husband and wife, therefore, it is amply clear that a minor victim was kidnapped by the appellant, kept her with him for which the learned trial court has rightly convicted and sentenced him and his appeal does not has any merits and the filed by the appellant does not have any merit, and the same is liable to be dismissed.

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9. Heard learned counsel for the parties and perused the records.

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10. The first and foremost question for consideration would be is, the age and date of birth of the victim, as to whether on the date of incident she was minor or not. The prosecution has mainly relied upon the school admission and discharge register Ex.P10C, which is sought to be proved

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by PW6, who is the Headmistress of the school. She has stated in her evidence that she is Headmistress of the school since September,2015, she brought the original school register which is Ex.P10 and its attested true copy is Ex.P10C. According to the entries made in the school register, the date of birth of the victim is 14.03.2000, she also recognized the signature of the Headmistress of the school whose signature is in the mark-sheet Article A. In cross-examination, she admitted that she has not made entries of date of birth of the victim in the school admission and discharge register and she further admitted that on what basis of her date of birth is recorded in the school register she did not know. She also did not know the correctness of the date of birth recorded in the school register, and what date of birth is recorded in her class-1 mark-sheet. Although the victim PW3 has stated that her date of birth is 14.03.2000, but she has not stated anything further that on what basis she has stated that her date of birth is 14.03.2000.

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11. PW2, mother of the victim has stated in her evidence that her daughter is presently aged about 16 years but she has not stated about her exact date of birth. In cross-examination, she stated that she has got married in the year 1997 and after 3 years of her marriage her daughter /the victim was born.

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12. PW1, father of the victim has stated in his evidence that age of the victim is about 16 years, he has given her mark-sheet of Class IV and Aadhar card to the police, which has been seized vide seizure memo

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Ex.P3. In cross-examination, he admitted that he has got prepared the Birth certificate of his daughter but he has not given it to anyone. He voluntarily stated that it is deposited in the school, he further admitted that he has not got prepared the birth certificate of the victim, because he was in Bihar at that time.

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13. The admissibility of School Register is dealt with by Hon’ble Supreme Court in various judicial pronouncements, and it is held that in absence of any material on which date of birth of a person recorded in the School Register, the same is not admissible, particularly in view of the fact that author of the same has not been examined.

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14. In the matter of Ravinder Singh Gorkhi Vs State of UP and Others, 2006 (5) SCC 584, Hon’ble Supreme Court has observed the following in Para 26 of its judgment:

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“26.In Birad Mal Singhvi v. Anand Purohit [1988 Supp. SCC 604], this Court held: “To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." (emphasis supplied)

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15. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011 (2) SCC 385, Hon'ble Supreme Court has held that the TC (transfer certificate) which is issued by a Government school, 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 absence of any material on the basis of which the age was recorded.

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16. In paragraphs 40, and 48 of its judgment in case of Alamelu (Supra), Hon’ble 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.........

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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. 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 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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17. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, 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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33.2.2. 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

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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 XXX

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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 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

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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 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 94(2) of the JJ Act, 2015.”

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

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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 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

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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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17. 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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19. Reverting to the facts of the present case, except the school register and mark-sheet of Class IV, there is no other evidence on record to show date of birth and age of the victim. No any Kotwari register or birth certificate has been produced by the prosecution, and even the victim has not been radiologically examined to determine her radiological age. In absence of any cogent and clinching documentary evidence, only on the basis of oral evidence, it is very difficult for this court to hold that the prosecutrix was minor on the date of incident and the prosecution has proved the fact that she was minor on the date of incident, yet the learned trial court has held her minor.

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20. So far as the commission of offence under section 363 and 366A of the IPC are concerned, I again examined the evidence of the victim PW3. She stated in her evidence that she is well acquainted with the appellant as he was her neighbour, She was liking him and this fact was

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informed to her mother by her brother, and thereafter, her mother has send her to her grandmother’s house at Bihar. Her mother has suspected that she is having relation with the appellant and in the month of December, 2015, her father has scolded her. In the state of angriness, she herself had gone to Jharsguda alone and made telephonic call to the appellant from the mobile phone of an unknown person and asked the appellant to come to Jharsguda Station, as she was waiting there. Then the appellant replied her that he is also at the station, and then she informed the appellant that she is not willing to return back to her house, and if he too is not willing to take her with him, she would do anything. Then the appellant called his brother, and then she accompanied the appellant up to Rourkela where she resided with him for about 5 months. Both of them resided in a rented house, later on, she stated that she was not residing with the appellant. After about 5 months, when the appellant came to Korba to leave her, the Police caught him. After declaring the victim hostile when the prosecution cross-examined her, she denied that the appellant has made physical relation with her at Rourkela. She admitted that she is in love with the appellant and she wanted to reside with him. In cross-examination, she further admitted that she knew the appellant Kumod but she is not having any relation with him. From the evidence of the victim, it appears that it is not the appellant who kidnapped her towards Jharsguda but it is the victim herself who had gone to Jharsguda, after getting scolded by her parents and made a telephonic call to the appellant from Jharsguda station and had gone with

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him on her own will. She has not made any compliant to anyone that the appellant is kidnapping her or acted in any forceful manner. Even while residing with the appellant at Rourkela for about five months she has not made any allegation that the appellant has kidnapped her and procured her for illicit intercourse or marriage. In Para-9 of her cross-examination, she admitted that she has not married with the appellant which further proved that the appellant has not procured her for marriage. Despite residing with the appellant for about five months they have not performed marriage which clearly shows that the appellant has not committed any offence as defined under section 366 A of the IPC.

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21. So far as the kidnapping, or taking away the minor girl is concerned, Hon’ble Supreme Court in the matter of S. Varadarajan Vs State of Madras , AIR 1965 SC 942, observed in paras 9 & 10 as below :

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“9. It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

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It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the

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minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.”

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22. Since the victim herself had gone to Jharsuguda from where she accompanied the appellant on her own will up to Rourkela, and resided with him on her own will for about five months, this Court is of the considered opinion that no offence of Section 363, or 366A are made out against the appellant.

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23. So far as appellant’s commission of offence under Section 12 of the POCSO Act is concerned, Section 12 is provided for punishment for sexual harassment, and the Sexual harassment is defined under Section 11 of the POCSO Act, which is necessary to re-produce hereunder for ready reference.

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E.—SEXUAL HARASSMENT AND PUNISHMENT THEREFOR 11. Sexual harassment.—A person is said to commit sexual harassment upon a child when such person with sexual intent,—

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(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

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(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

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(iii) shows any object to a child in any form or media for pornographic purposes; or

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(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

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(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

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(vi) entices a child for pornographic purposes or gives gratification therefor. Explanation.—Any question which involves “sexual intent” shall be a question of fact.

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24. From the evidence of victim, PW3, there is no averment in her evidence that the appellant utters any word or makes any gesture, or exhibits any object or part of the body with an intention that such word, or gesture, or part of the body shall be seen by the child, and has not exhibit any of his body part to the victim. Even otherwise, the victim is not found tobe minor. Therefore, the offence under Section 12 of the POCSO Act is also not made out against the appellant, for which he has been convicted and sentenced by the learned trial Court.

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25. PW1 father of the victim, and PW2 mother of the victim have given their evidence on the basis of incident disclosed by the victim to them. PW1 father of the victim stated in his evidence that when his daughter was found to the Police, she has not informed any incident to him. Even PW2 mother of the victim has stated in her evidence that the victim has not informed any incident to her, except that she was Rourkela along with the appellant.

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26. PW9, Dr KB Sonkar, who medically examined the victim has not found any injury on her body, and there is no any symptom of struggle in her medical examination.

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27. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of her evidence, then it will not be safe to rely upon the said version of the victim. There are contradictions and omissions in the statement of the victim and her family members, including her mother. 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, and if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case.

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28. From the aforesaid discussion, this Court does not find any cogent and clinching evidence, which makes reliable for his conviction for the alleged offences.

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29. In the result, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 07.04.2017 is set aside, and the appellant is acquitted from all the offences.

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30. Appellant is reported to be on bail. His bail bonds shall continue for further period of six months as provided under Section 481 of the Bharatiya Nagrik Suraksha Sanhita 2023.

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

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Sd/-

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(Ravindra Kumar Agrawal) JUDGE

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padma

Kumod Sunani v. State Of Chhattisgarh

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Kumod Sunani v. State Of Chhattisgarh

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