Vishal Kumar Sahu Vs State of Chhattisgarh

1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 30-4-2022 passed by 1^st F.T.S.C. (POCSO)/Upper Sessions Judge, Bilaspur (CG)(henceforth referred to as ‘Special Judge’) in Special Session Trial No.97/2020, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:-

¶16

Sl.	Conviction	Jail Sentence	Fine	Default
No.	under Section		Sentence	stipulation
01.	363, IPC	RI for 1year	Rs. 100/-	RI for 3

¶17

2

¶18

				month
02.	366-A, IPC	RI for 1 year	Rs.100/-	RI for 3
				month
03.	5(l)/6, POCSO	RI for 10 years	Rs.300/-	RI for 1 year
	Act
04.	376(2)(n), IPC	–	–	--

¶19

All the substantive jail sentences have been directed to run concurrently.

¶20

It is pertinent to mention here that appellant has also been convicted for the offence under Section 376(2)(n) of the IPC, but since punishment under Section 6 of the POCSO Act, is greater in degree, therefore, in view of provisions of Section 42 of the Protection of Children from Sexual offences Act, 2012 (henceforth referred to as ‘POCSO Act’), the appellant has been convicted only for the offence under Section 6 of the POCSO Act.

¶21

2. The case of the prosecution, in brief, is that, on 11-1-2019, complainant (Father of the victim) lodged report in PS Seepat, Bilaspur that, his minor daughter (victim), aged about 15 years, 6 months and 1 day, was studying in Class 9 in the school of Khamariya. In the morning of 8-1-2019, she left house to go to school but, she did not return till 5 pm. On being asked from her friend, she told that the victim had not gone to school on account of stomach pain and returned to house. Despite being searched, they did not know whereabouts of the victim. Based on above facts, missing report No. 2/2019 was lodged. Since the victim was minor, therefore, FIR (Ex. P-24) for the offence under Section 363 of the IPC was registered against unknown person. During

¶22

3

¶23

the course of investigation, on 29-6-2020, minor victim was recovered from possession of the appellant/accused vide recovery memo (Ex. P- 4). Thereafter, she revealed that, the appellant/accused had abducted her by alluring and took her to Jammu and Kashmir and performed marriage with her in temple. She further revealed that, the appellant/accused had kept her in a rented house and forcefully sexually exploited her repeatedly for 1 ½ year. Thereafter, offence under Section 366, 376(2)(n) of the Indian Penal Code, (henceforth, referred to as ‘IPC’) and Section 6 the POCSO Act were added. Medical examination of the victim was conducted vide Ex. P-2. Statement of victim under Section 164 of the Cr.P.C. (Ex. P-6) was recorded before the Judicial Magistrate First Class, Bilaspur. Statements of witnesses under Section 161 of the Cr.P.C. were recorded. Dakhil Kharij register [Ex. P-13(c)] of the victim was seized from Government Primary School, Kuli, distt. Bilaspur vide Seizure memo Ex. P-12. Underwear of the appellant/accused was seized vide Ex. P-15. Vaginal slides and undergarment of victim and undergarment of the appellant/accused were got examined from the FSL, Bilaspur. Vide FSL report (Ex. P-23), semen stains and human spermatozoa were reported to be found on underwear of the accused (Article B). The appellant/accused was also medically examined by Dr. R.S. Meravi (P.W. 10), who vide his report (Ex. P-18) reported that, the appellant/accused was capable to perform sexual intercourse. After usual investigation, charge sheet under Section 363, 366, 376(2)(n) of the IPC and Section 6 of the POCSO Act was filed before the Special Judge.

¶24

4

¶25

3. Learned Special Judge framed charges under Sections 363, 366-A, 376(2)(n) of the IPC and Section 5(l)/6 of the POCSO Act against the appellant/accused, who denied the charges and claimed trial.

¶26

4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 16 witnesses and exhibited 25 documents and progress report of prosecutrix of Class 9 has been marked as Article ‘A’. Statement of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he denied the incriminating circumstances appearing against him and pleaded innocence. No witnesses have been examined by the appellant-accused. The trial Court upon appreciation of oral and documentary evidence available on record, vide its judgment dated 30-4-2022, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused as mentioned in the opening paragraph, against which, this appeal has been filed by him.

¶27

5. Learned counsel for the appellant submits that, as per school certificate of victim, her date of birth is 7-7-2003 and date of incident is 8-1-2019. Accordingly, her age on the date of incident was 15 years, 6 months and 1 day. The victim (P.W. 2), who was studying in Class 9^th at the time of incident, has stated that, her date of birth is 26-6-2002. Accordingly, her age on the date of incident was 16 years, 6 months and 13 days, but in cross-examination, she has admitted that, when she had gone with the appellant, at that time, her age was 18½ years. Her father P.W. 3 has also admitted in his cross-examination that, knowingly he has got entered the lesser date of birth of victim while admitting her in school. As per statement of this witness also, victim

¶28

5

¶29

was not minor on the date of incident. Thus, there is contradictory evidence with regard to the fact as to what was the age of victim on the date of incident. Despite that, learned Special Judge has held that, the victim was minor on the date of incident, which is perverse to the evidence available on record, hence the same is not sustainable. It is further submitted that, it is a case of love affair. Victim (P.W. 2) herself has admitted in her deposition that, she accompanied the appellant/accused on her own will, accused has never allured her nor he has made forcible sexual relation with her. She has also admitted that, she has got married with appellant/accused and she has also delivered child of the appellant/accused. This fact has also been supported by her father (P.W. 3) and has also been admitted by the appellant in his statement recorded under Section 313 of the IPC. He has further submitted that, as of now, the victim has delivered second child of the appellant/accused, but disregarding this statement, learned Special Judge has convicted him only on the basis of his own imagination. Hence, he prays that the impugned judgment of conviction and order of sentence may be set aside and the appellant may be acquitted of all the charges.

¶30

6. Learned Panel Lawyer, appearing for the respondent/State supports the impugned judgment.

¶31

7. I have heard learned counsel for the parties, considered their rival submissions made and also went through the record of the trial Court with utmost circumspection.

¶32

8. First of all, the question which arises for consideration is as to whether the prosecutrix (PW-2) was minor on the date of the incident ? In this

¶33

6

¶34

regard, prosecution case is based on Dakhil Kharij register/school record of the prosecutrix.

¶35

9. In the matter of Gorkhi Vs. State of UP [(2006) 5 SCC 584], Hon’ble Supreme Court observed at para-26 as under :-

¶36

“ 26 . In Birad Mal Singhvi v. Anand Purohit {1988 Supp SCC 604} this Court held: (SCC p. 619, para 15)

¶37

“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 .”

¶38

(emphasis supplied)

¶39

10. Same proposition was reiterated in the matter of Babloo Pasi Vs. State of Jharkhand and another [(2008) 13 SCC 133] wherein the following material observations were made at paras-28 to 29:-

¶40

“ 28 . It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant

¶41

7

¶42

fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially 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. (See: Birad Mal Singhvi Vs. Anand Purohit).

¶43

29 . ……………………………...in the absence of evidence to show on what material the entry in the voters' list in the name of the accused was made, a mere production of a copy of the voters' list, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused…………………………...”

¶44

11. Further in the matter of Madan Mohan Singh and Others Vs.

¶45

Rajni Kant and Another [ (2010) 9 SCC 209], it was observed that the entries made in the official record by an official or person aurthorised in performance of official duties may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/ school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

¶46

12. In instant case, what was age of the victim on the date of incident i.e. 8-1-2019 is highly contradictory. As per her school record/Dakhil Kharij register [Ex. P-13(c)], her date of birth is 7-7-2003. Dakhil Kharij register [Ex. P-13(c)] has been proved by Rajendra Kumar Jaiswal

¶47

8

¶48

(P.W. 5), but he is not the author of the same. Victim herself has deposed that, her date of birth is 26-6-2002, on this count, her age on the date of incident was 16 years, 6 months and 13 days, but her father (P.W. 3) has himself admitted in his cross-examination that, knowingly he got entered lesser date of birth of victim while admitting her in school. The prosecutrix has also admitted in cross-examination that, when she had gone with the appellant, at that time her age was 18 ½ years. It is settled law that, prosecution has to prove its case beyond all reasonable doubt, but in instant case, oral and documentary evidence brought by the prosecution to prove the age of victim is highly contradictory, therefore, in the light of observation made by Hon’ble Supreme Court in the above referred cases, in the considered opinion of this Court, learned trial Court has erred in law in holding that on the date of incident, the victim was minor. Having considered such highly contradictory evidence, even upon applying provisions of Section 29 of the POCSO Act, it cannot be held that, the victim was minor on the date of incident and he is entitled to get benefit of doubt.

¶49

13. So far as offence of rape is concerned, victim (P.W. 2) herself has admitted in her deposition that, she had gone with the appellant/accused on her own will and he had not allured her. She has also admitted that, the appellant has never made forceful sexual relation with her. She has also admitted in her deposition that, she has performed marriage with him and has also delivered child of appellant/ accused, which is also supported by her father (P.W. 3). Thus, since, prosecution has failed to prove that on the date of incident, the prosecutrix was minor and further considering aforesaid admission of

¶50

9

¶51

victim herself, supported by her father also, in the considered opinion of this Court, the impugned judgment of conviction and order of sentence passed by the Special Judge against the appellant/accused is not sustainable. Hence, I feel inclined to allow instant appeal.

¶52

14. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 363, 366-A and 376(2)(n) of the IPC, Section 5 (l)/ 6 of the POCSO Act are set aside and he is acquitted of the said charges on the basis of benefit of doubt. 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 from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

¶53

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

¶54

16. The Criminal Appeal is allowed.

¶55

Sd/-

¶56

(Naresh Kumar Chandravanshi)

¶57

Judge

¶58

pathak

Vishal Kumar Sahu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Vishal Kumar Sahu 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

Lilavati Devi Vs Nathuni Singh

Managing Director, C.S.P.D.C.L Vs Smt. Shanti Bai

Dinesh Kumar Pandey Vs Chhattisgarh State Electricity Distribution Company Limited

Mahadev Barsa @ Kola Vs State of Chhattisgarh

Smt. Chandra Prabha Rathore Vs State of Chhattisgarh

Gurmukh Das Menghani HUF Vs Union of India