Indrajeet Chaudhari Vs State Of Chhattisgarh

This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 17.03.2016, passed in Special Sessions Trial No. 150 of 2014 by which the learned Special Judge (Protection of Children from Sexual Offences Act 2012) & Additional Sessions Judge (F.T.C.), Durg (C.G.), whereby the appellant has been convicted and sentenced as follows:-

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Conviction	Sentence
U/S 363 of IPC	R.I for 04	years with fine
	amount of	Rs. 2,000/-, in

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	default o undergo months.	f payment of fine, to further R.I. for 03
U/S 366 of IPC	R.I. for amount default o undergo months.	04 years with fine of Rs. 2,000/-, in f payment of fine, to further R.I. for 03
U/S 376 (2) (n) of IPC &	R.I. for	10 years with fine
Section 6 of POCSO Act, 2012	amount default undergo	of Rs. 5,000/-, in of payment of fine to R.I. for 06 months.

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(All the substantive sentences are directed to run concurrently.)

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Today, no one appeared on behalf of the appellant when the matter was called out. I, therefore, this Court deems it appropriate to decide the appeal by appointing a counsel from the High Court Legal Aid Committee. Ms. Seema Singh, empanelled legal aid counsel, is hereby appointed as a counsel for the appellant to argue the appeal on his behalf. The Secretary, High Court legal Aid Committee is directed to issue authorization letter in her favour. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted by Ms. Seema Singh 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 the 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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Brief facts of the case are that the appellant was driver of a school bus and the prosecutrix, who was below 18 years at the relevant time, was studying in Class XI at Maharshi Dayanand Saraswati Shishu Mandir and was going to school in the said bus and in the said course, love affair developed between them, due to which, she left the company of

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her parents on 23.01.2013 at around 7 pm, and fled away with the appellant at Allahabad, where they both have solemnized their marriage in a temple and resided in a rented house, where the appellant was earning his livelihood. Thereafter, the appellant took the prosecutrix with him to Hyderabad and committed forcible sexual intercourse with her, later they came to Bilaspur and returned to Bhilai. The missing report was lodged by the father of the prosecutrix on 28.01.2013.

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During the investigation, S.I. Harish Sahu (PW-07) has recovered the prosecutrix from the house of appellant at Ghasidas Nagar, Durga stage on 17.11.2014 before the witnesses Meena and Mukesh and recovery memo Ex. P/01 was prepared and the appellant was prosecuted, tried, convicted and sentenced as aforementioned. The appellant and prosecutrix were living happily as husband and wife with their two minor children but due to tender age of the prosecutrix, the appellant has been convicted as mentioned above. Thereafter, statement of the victim/prosecutrix was recorded and it was found that on false pretext of marriage, the appellant took away the minor prosecutrix with him to Allahabad and then to Hyderabad and there he committed forcible sexual intercourse with the victim/prosecutrix without her consent. On the basis of statement of PW-04 Smt. Shail Dubey, Headmaster of Maharshi Dayanand Saraswati Shishu Mandir, Kailash Nagar Bhilai, the Dakhil Kharij Register was seized vide Ex. P/08. The medical examination of the appellant was conducted and the report given by PW-10 Doctor Sanjay Kumar vide Ex. P/10.

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Thereafter, the accused/appellant was taken into custody and the statement of the accused/appellant and other relevant witnesses were

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recorded under Section 161 of Cr.P.C. After completion of due and necessary investigation, charge-sheet was filed before the concerned Jurisdictional Magistrate and the case was committed to the learned Special Judge (Protection of Children from Sexual Offences Act 2012) & Additional Sessions Judge (F.T.C.), Durg (C.G.) for offence punishable under Sections 363, 366, 376 (2) (n) of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012.

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In order to substantiate its case, the prosecution has examined as many as 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. wherein he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, no witness has been adduced in his defence.

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Learned trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the accused/appellant as mentioned in the opening paragraph of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the conviction of the appellant under Section 376 (2) (n) of IPC has no application in the present case as the amendment came into force w.e.f 13.02.2013 and the alleged offence was committed on 23.01.2013 and thus, the findings of the learned trial Court is bad in law and deserves to be quashed. She further submits that the conviction of the appellant under sections 363, 366 of IPC is erroneous as the prosecutrix, her father PW-02 and mother PW-03 have stated that the prosecutrix had left the house without informing them, meaning which she was not kidnapped or abducted from lawful guardianship and thus no offence was

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committed by the appellant. The learned trial Court has wrongly held the age of the prosecutrix as below 18 years by wrongly interpreting Section 35 of Evidence Act by holding that the Headmaster Smt. Shail Dubey (PW-04) is a public servant and entry made by her in Dakhil Kharij Register is admissible, especially when it was fairly admitted by her that no document in connection with age was produced by relative at the time of admission. She further contends that in terms of Section 21 of the IPC, Headmaster is not covered under the purview of public servant. She further submits that according to school record, Ex. P/8-C, the date of birth of the prosecutrix was 03.05.1996 and according to the birth certificate Ex. D/01, the date of birth of the prosecutrix is 24.10.1995, the birth record is not reliable as it was issued on 25.04.1996. She further submits that the parents of the prosecutrix PW02 and PW-03 have been declared hostile and they have not supported the prosecution case, so far as it relates to the question of date of birth of the prosecutrix. The prosecutrix herself has stated that her age as 20 years and thus her admission should not be discarded and her statement cannot be thrown away. Further, no ossification test of the prosecutrix has been conducted to ascertain her age. So, when the age of the prosecutrix is in serious dispute, the appellant cannot be held guilty under POCSO Act, 2012. She further contends that the learned trial Court failed to appreciate that the prosecutrix married the appellant when she turned major and from their wedlock two children were born. Learned trial Court has also failed to appreciate the statement of prosecutrix under Section 164 of Cr.P.C. in which she has stated that she is enjoying her marital life happily with the appellant and without any cogent reason, her husband has been taken into custody,

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as a result of which her marital life has fallen and her mother-in-law is bound to go for labourer job in her old age to look after the family. As such the impugned judgment is liable to be set aside.

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Ex adverso , learned counsel for the State supported the impugned judgment and submits that the learned trial Court has minutely appreciated the oral and documentary evidence and rightly convicted the accused/appellant and considered the documentary evidence with regard to proving the age of the prosecutrix and has given a clear finding that on the date of incident the prosecutrix was 17 years and 03 months. She further submits that the judgment of conviction and sentence recorded by the learned trial Court is based on sufficient and reliable evidence rendered by the prosecution and there is no infirmity in the same. As such, even if there was affair between the appellant and the prosecutrix, the act committed by the appellant makes him liable for conviction under Sections 363, 366 and Section 376 (2) (n) of IPC and Section 6 of POCSO Act. Being so, the impugned judgment is strictly in accordance with law and the present appeal being devoid of any merit is liable to be dismissed.

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I have heard both the counsel for the respective parties and perused the material available on record including the impugned judgment with utmost circumspection.

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PW-01, the victim has stated that she is familiar with the appellant as he is her legally wedded husband and the victim’s date of birth is 24.10.1995. She has stated that she and the appellant were in love affair with each other and they wanted to marry and she also apprised her interest of marriage with the appellant to her parents, but they have denied the same. Therefore, she fled with the appellant to Allahabad and

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they have performed marriage in temple and they both were living together as husband and wife. The prosecution declared her hostile and cross-examined her, but nothing could be elicited to disbelieve her deposition.

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PW-02, father of the victim has stated that he has lodged the missing report of his daughter/victim, thereafter his daughter was recovered from Ghasidas Nagar, Jamul and she stated that she performed marriage with the appellant. In his cross-examination, he stated that on the date of incident, her daughter attained majority and he himself admitted this fact that he has written his daughter’s age by increasing 01 year. PW-03, mother of the victim has supported the statement of her husband PW-02.

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PW-04, Shail Dubey, Headmaster of Maharshi Dayanand Saraswati Shishu Mandir has stated that she brought the Dakhil Kharij Register wherein in victim’s date of birth was mentioned as 03.05.1996 at serial No. 2114. In her cross-examination, she admitted this fact that at the time of admission of the victim no documents were produced regarding her age and only on the basis of assumption she recorded her date of birth.

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The Hon’ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police , (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment 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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48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by

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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 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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From close scrutiny of record of the learned trial Court it is clear that it

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is established story of the prosecution that there was consensual relationship between the victim and the appellant/accused. The only question that remains in this case is whether on the date of the incident, i.e., 23.01.2013, the prosecutrix was a minor or not? In this regard, the prosecutrix has stated that there was a love affair between her and the appellant and she wants to marry with the appellant and out of her own free will she fled with the appellant and has solemnized marriage with him at Allahabad in temple and from their wedlock two children are born. She has further stated that her father had mentioned her date of birth in the birth certificate by decreasing one year. PW-02, father of the prosecutrix has specifically stated that he has written his daughter’s age by increasing 01 year, the prosecution has declared him hostile and cross-examined him, then he admitted this fact that on the date of

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incident, his daughter attained majority. It is also clear from the statement of mother of the prosecutrix PW-03 that on the date of incident her daughter’s age is 19 years, the prosecution has declared her hostile and cross-examined her, then she supported the statement of her husband PW-02 as stated by him. The prosecution has failed to prove its case beyond reasonable doubts as only on the basis of producing birth certificate vide Ex. D/01, the prsoecutrix is mentioned as 24.10.1995. In Dakhil Kharij Register, the date of birth of the prosecutrix is 03.05.1996 and the Headmaster has admitted this fact that age of the victim was written only on the basis of assumption, however, the burden of proof is on the prosecution to prove the age of the victim, but the learned trial Court did not appreciate all these facts and convicted the appellant.

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Ex consequenti , the appeal is allowed . The impugned judgment of conviction and order of sentence dated 17.03.2016 is set aside and the appellant is acquitted of the aforesaid charges leveled against him.

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The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 481 of BNSS, 2023.

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

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Sd/-

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(Arvind Kumar Verma) JUDGE

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U.K. Raju

Indrajeet Chaudhari v. State Of Chhattisgarh

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Indrajeet Chaudhari v. State Of Chhattisgarh

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