Umesh @ Charka Vs State Of Chhattisgarh

1. This criminal appeal has been preferred by appellant against the judgment of conviction and order of sentence dated 04.07.2016, passed by learned Additional Sessions

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Judge, Pratappur, District Surajpur, Chhattisgarh, in Session Trial No.12/2016, whereby appellant stands convicted and sentenced as under:

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Conviction	Sentence
Under Section 354 of the IPC.	Rigorous imprisonment for 02 years & fine of Rs.300/-, in default of payment of fine, 06 months additional RI.
Under Section 354(A)(i) of the IPC.	Rigorous imprisonment for 01 year & fine of Rs.200/-, in default of payment of fine, 06 months additional RI.
Under Section 342 of the IPC.	Rigorous imprisonment for 01 year.
Under Section 8 of the POCSO Act.	Rigorous imprisonment for 04 years & fine of Rs.500/-, in default of payment of fine, 06 months additional RI.

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The prosecution case, in brief, is that on 12.05.2016, when the minor prosecutrix/victim was alone in her house and sitting infront of the house, at that time, this appellant came there and, thereafter, dragged her inside the room/home and locked the door from the inside and tried to outrage her modesty. When brother of prosecutrix came there he saw that the door was locked from inside and when he asked for

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opening the door, at that time, the appellant open the door and ran away from the place of incident. Based upon report, FIR was registered against the appellant in the alleged crime/offence.

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On completion of investigation, challan/charge sheet was filed against the appellant and based upon which trial Court framed the charges against him.

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Prosecution in order to prove its case examined total 09 witnesses. Statement of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence.

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After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal.

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Learned counsel for the appellant submits that impugned judgment is per se illegal and contrary to the evidence available on record. As per case of prosecution, prosecutrix was aged about 17 years and 11 months at the time of alleged incident, but no authentic documentary proof was

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filed in order to show that the prosecutrix was a minor girl on the alleged date. There is delay in lodging the FIR, which has not been explained properly by the prosecution. Prosecutrix in her evidence has admitted that she lodged the report against the appellant on the instructions of the Motilal and Bhaiyalal. There is previous dispute/enmity between brother/cousin of victim and the appellant, due to this reason, FIR has been lodged against the appellant. There are many contradictions and omissions in the statements of the prosecution witnesses, which was not considered properly by learned trial Court. As such, impugned judgment of conviction and sentence awarded to the appellant deserves to be set-aside.

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On the other hand, learned counsel for the State supporting the impugned judgment and submits that the prosecutrix was a minor girl on the date of incident and this fact has been duly proved by the prosecution by adducing oral and documentary evidence. On the date of alleged incident, appellant dragged the prosecutrix inside the room/home and tried to outrage her modesty. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed.

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Heard learned counsel for the respective parties and

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perused the recorded placed on record.

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Now this Court has to see whether the prosecution has been able to prove that on the date of incident prosecutrix was minor.

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PW-1/prosecutrix in her evidence has stated that she studied upto Class VIII, she does not recollect her date of birth, she studied from Class I to Class VIII in the school situated at village Singhra, she further stated that for her admission, her father had gone to the school. In her crossexamination, she stated that for the purpose of her admission, her father had gone to the school and at that time they did not carry the birth certificate. When she attained the age of about 10 years, her father caused her name to be entered in the school records.

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PW5/father of victim in his evidence has stated that victim was admitted to school at approximately 10–12 years of age. After seeing the victim, the teacher told that her age was on the higher side and, therefore, he would record a reduced age. The age of the victim was recorded on the basis of estimation by the teacher. He had given his consent to the teacher to record a reduced age of the victim.

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PW-7/Agastutas Kujur, (Headmaster of the School) in his evidence has stated that name of victim has not been recorded/entered by him in the Dakhil-Kharij-Panji. In the villages, guardians do not ordinarily produce the birth certificates at the time of admission of children in the schools. The guardians approach the schools for admission of children, when they are generally approximate age of 10– 12 years. The teachers recorded the particulars of students in Dakhil-Kharij-Panji on the basis of estimation.

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The prosecution has heavily relied upon the entry made in Dakhil-Kharij register of the Government Primary School, Singhra, Pratappur, District Surajpur, regarding date of birth of prosecutrix. Though in the said register, her date of birth is recorded as 04.06.98, but PW-7/Headmaster of said school has admitted in his cross-examination that he is not aware that on what basis said entry was made in Dakhil Kharij Register. Prosecution did not produce any relevant certificate/documents regarding DOB of prosecutrix.

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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

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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 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 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

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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 the case of Rishipal Singh Solanki Vs. State of Uttar

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Pradesh & others, (2022) 8 SCC 602 , the Hon'ble Supreme Court 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 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 In the case of Rishipal Singh Solanki Vs. State of Uttar

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Pradesh & others, (2022) 8 SCC 602 , the Hon'ble Supreme Court observed in para 33 as under: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 subsection (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 In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & others, (2022) 8 SCC 602 , the Hon'ble Supreme Court observed in para 33 as under: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

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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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The Supreme Court in the matter of Manak Chand alias

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Mani vs. State of Haryana, 2023 SCC Online SC 1397 has

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reiterated the law laid down by it in the matter of Birad Mal

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Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed 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 the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:-

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“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.

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“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.”

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

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In the case of P. Yuvaprakash versus State Rep. By

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Inspector of Police, AIR 2023 SC 3525, the Hon'ble Supreme Court observed in para 13 as under:

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“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:

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(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;

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

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(iii) and only in the absence of (i) and (ii) above, age shall be

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determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”.

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In light of aforesaid decisions of the Hon'ble Supreme Court, this Court is of the view that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, this Court set aside the finding so recorded by the learned trial Court and hold that the prosecution has not been able to prove successfully that on the date of incident she was minor.

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Now coming to the point whether the appellant has tried to outrage the modesty of the victim on the date of alleged incident,?

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PW-1/Victim in her evidence has stated that no incident occurred with her and she has not lodged the report before the Police Station. In her cross-examination, she admitted that present appellant has not done anything with her. She further admitted that she lodged the report against the appellant on the instructions of the Motilal and Bhaiyalal. She has been asked by Motital and Bhaiya Lal to lodge th e report and they will handle the case. She further admitted

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that Amar Sai (father of accused-appellant) and Suresh have been assaulted by Bhaiya Lal and Motital and just to avoid legal consequences Bhaiya Lal and Motital asked her to lodged the report against the appellant.

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Upon careful consideration of the evidence on record, this Court finds that the prosecution has failed to prove that the appellant attempted to outrage the modesty of the prosecutrix on the date of the alleged incident. The testimony of PW-1, the prosecutrix herself, does not support the prosecution case; rather, she has categorically denied the occurrence of any such incident and has expressly stated that the appellant did not commit anything with her. Her admission that the First Information Report was lodged at the instance of Motilal and Bhaiyalal for extraneous reasons further undermines the credibility of the prosecution version. In the absence of any reliable or corroborative evidence, the essential ingredients of the alleged offence remain unestablished. Hence, this Court holds that the prosecution has not proved its case beyond reasonable doubt.

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Since this Court has already observed that the prosecution has failed to prove that on the date of incident victim was minor, in the given set of facts and circumstances of the case, no offence is made out against the appellant.

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In the result, the appeal is allowed and the impugned judgment dated 04.07.2016 is hereby set aside. The appellant is acquitted from the aforementioned charges/offences.

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

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Sd/- (Arvind Kumar Verma) JUDGE

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J/-

Umesh @ Charka v. State Of Chhattisgarh

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Umesh @ Charka v. State Of Chhattisgarh

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