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2016 DIGILAW 412 (CHH)

Avon Kumar v. State of Madhya Pradesh

2016-10-18

RAJENDRA CHANDRA SINGH SAMANT

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JUDGMENT : Rajendra Chandra Singh Samant, J. This appeal has been preferred against the judgment of conviction and order of sentence dated 25-1-2000 passed by the Additional Sessions Judge, Bemetara, District Durg, Chhattisgarh in Sessions Trial No. 193 of 1999, whereby and where under the learned Additional Sessions Judge has convicted the appellant under Sections 450 and 376 (1) of the Indian Penal Code (for short 'IPC') and sentenced him to undergo rigorous imprisonment for a period of five years and to pay fine of Rs. 500/- under Section 450 of IPC, in default of payment of fine, to further undergo RI two months and to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 500/- under Section 376(1) of IPC, in default of payment of fine, to further undergo RI two months, respectively. 2. The case of the prosecution, in brief, is that on 26-2-1999, at about 12:00 noon, when the prosecutrix, aged about 13 years, was alone at her residence, appellant-Avon Kumar entered her house, bolted the door from inside and using force on the prosecutrix, he pushed her on a cot, forcefully removed her clothes and committed forceful sexual intercourse with her. Soon after the incident, the prosecutrix raised alarm upon which Rajju Sahu, Israil Khan and her father came to the spot. On seeing them, the appellant ran away from the spot. The prosecutrix narrated the incident to her father and mother. First Information Report (Ex. P/1) was lodged by her in police station Nawagarh on the same date at about 11.00 p.m. The police investigated the case and presented the charge-sheet in the Court for prosecution of the appellant under Sections 376 and 450 of the IPC. 3. The appellant was charged under Sections 450 and 376(1) of the IPC to which he denied and the trial was conducted by giving opportunity of hearing and for leading evidence to the prosecution and defence. After hearing, learned counsel for the respective parties, the impugned judgment was passed whereby the appellant has been convicted and sentenced as mentioned above. 4. The grounds raised in this appeal are that the appellant has been falsely implicated in the present case and the age of the prosecutrix was more than 16 years at the time of incident. After hearing, learned counsel for the respective parties, the impugned judgment was passed whereby the appellant has been convicted and sentenced as mentioned above. 4. The grounds raised in this appeal are that the appellant has been falsely implicated in the present case and the age of the prosecutrix was more than 16 years at the time of incident. On the fateful day, it was the prosecutrix herself who invited the appellant to her house and as such she was a consenting party to the act of sexual intercourse. The prosecution case is based on the solitary testimony of the prosecutrix. The medical evidence does not support the case of the prosecution. On these grounds, no offence under Section 376 of the IPC is made out and the has not been able to establish its case beyond reasonable doubt. On these grounds, the appeal may be allowed and the appellant may be acquitted of the charges framed against him. 5. During the pendency of this appeal, an application was filed on behalf of the appellant under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act, 2000') wherein it was prayed that the appellant was juvenile on the date of commission of offence. Hence, it is necessary that an inquiry be made in respect of the age of the appellant. On the basis of this application, this Court vide order dated 29-4-2014 allowed the application and directed that an inquiry be conducted by the Additional Sessions Judge, Bemetara with regard to juvenility of the appellant and submit a report in this respect. A report dated 7-7-2014 has been submitted by the Additional Sessions Judge, Bemetara in which he has mentioned that although school record of appellant-Avon Kumar disclosed his date of birth as 7-3-1981 but the register of Kotwar mentions that date of birth of Ramsnehi S/o Pardeshi is 29-9-1979. Inquiry Officer has given a finding that Ramsnehi S/o Pardeshi is none other than appellant-Avon Kumar and his actual date of birth is 29-9-1979 and as such on the date of incident, his age was 19 years 4 months and 28 days. 6. At the stage of final argument, the counsel for the appellant submits that the age of the appellant on the date of incident was below 18 years. 6. At the stage of final argument, the counsel for the appellant submits that the age of the appellant on the date of incident was below 18 years. The finding given in the enquiry report by the Additional Sessions Judge, Bemetara is not acceptable. Learned counsel prayed that the enquiry report of the Additional Sessions Judge and other relevant material are available before this Court, therefore, this Court may come to its own conclusion about the age of the appellant. Learned counsel further submitted that on perusal of the records, it is clear from the documents produced before the enquiry officer and the school records, the date of birth of appellant-Avon Kumar S/o Pardeshiram Sahu is 7-3-1981. The Kotwar was also examined in the enquiry and on the basis of the kotwari record he has given the statement that one Khorbehara, grandfather of the appellant, gave the information that one Ramsnehi was born on 29-9-1979 whose father was Pardeshiram Sahu and mother was Amrika Bai. The Enquiry Officer has given finding on the basis of the Kotwari record. 7. Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as follows : '[7A. Procedure to be followed when claim of juvenility is raised before any court.- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be : Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a Court shall be deemed top have no effect.]' 8. As per the provision of Section 7A of the Act, 2000, it is clear that the Court can order an enquiry so as to take decision on the point of juvenility of the accused person. In this case, the question of juvenility is considered on the basis of the arguments submitted by learned counsel for the appellants. 9. The documentary evidence produced in the enquiry were the mark-sheets of Primary School, Murkuta, Madhyamik Pariksha of the year 1991 and Poorva Madhyamik Pariksha, 1996 which show that the date of birth of appellant-Avon Kumar S/o Pardeshiram Sahu is 7-3-1981. 10. Learned counsel for the appellant argues that the copy of Kotwari register shows that appellant-Avon Kumar is son of Pardeshiram Sahu and Amrika Bai, but the name of mother of the appellant is not Amrika Bai. No evidence was brought before the enquiry officer to show that the name of the mother of the appellant is Amrika Bai. Pardeshiram Sahu has given the statement before the enquiry officer that the name of his wife is Budhara Bai and his wife has no other name. Budhara Bai has also stated before the enquiry officer that appellant-Avon Kumar is her son and she is not known by any other name. Kotwar-Shrawan Das was examined by the Enquiry Officer who has stated that the concerned entry in the Kotwari register was made by appellant's grandfather Khorbehara. No other details have been given by this witness regarding the entry with respect to birth of Ramsnehi son of Pardeshiram Sahu to show that this entry was made with respect to the birth of appellant-Avon Kumar. 11. After perusal of the evidence produced before the enquiry officer, it is found that the evidence of Kotwari register is not convincing. On the other hand, the evidence of the school records has not been contradicted. Hence there is no reason to discard the evidence of the school record and accept the evidence of Kotwari register which does not establish with clarity that the date of birth mentioned in the Kotwari register is in connection with the appellant exclusively. On the other hand, the evidence of the school records has not been contradicted. Hence there is no reason to discard the evidence of the school record and accept the evidence of Kotwari register which does not establish with clarity that the date of birth mentioned in the Kotwari register is in connection with the appellant exclusively. 12. In view of the above discussion, a conclusion can be drawn that as per date of birth of the appellant in his school records, his age on the date of incident i.e. 26-2-1999 was 17 years 11 months and 21 days. Hence, this Court arrives at a finding that the appellant was a juvenile on the date of the incident as per the definition of juvenile given in Section 2(k) of the Act, 2000 which defines that a juvenile means a person who has not completed eighteenth year of age. 13. The proviso to Section 7 A of the Act, 2000 makes it clear that a claim of juvenility shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. Sub-section (2) of Section 7A of the Act, 2000 provides that if the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) of Section 7A of the Act, 2000, it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by the Court shall be deemed to have no effect. 14. The explanation to Section 20 of the Act, 2000 provides that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. 15. 15. Learned counsel for the appellant placed his argument on the basis of the juvenility of the appellant on the date of the incident alone and has prayed for acquittal of the appellant. He has placed reliance on the judgment of Supreme Court in Ashwani Kumar Saxena v. State of Madhya Pradesh, reported in (2012) 9 SCC 750 : ( AIR 2013 SC 553 ). It was held in that judgment relying on Arnit Das v. State of Bihar, reported in (2000) 5 SCC 488 : ( AIR 2000 SC 2264 ) that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile and if two views are possible on the same evidence, the Court should lean in favour of holding the accused to be juvenile in borderline cases. 16. In Ashwani Kumar Saxena v. State of Madhya Pradesh, reported in (2012) 9 SCC 750 para 32 ( AIR 2013 SC 553 , Para 34) reads as follows : '32. "Age determination inquiry" contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child of juvenile by considering his or her age on lower side within the margin of one year.' 17. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child of juvenile by considering his or her age on lower side within the margin of one year.' 17. The appellant has also placed reliance on Jodhbir Singh v. State of Punjab reported in 2013 (1) CGLJ 190 (SC) : ( AIR 2013 SC 1 ) and Narendra and another v. State of M.P. reported in 2014 CGLJ 215 in which the same view has taken by the Courts. 18. In conclusion, this Court arrives at a finding that the appellant was a juvenile on the date of the incident. The judgment of conviction and order of sentence passed by the trial Court is deemed to have no effect as per the provision contained in Section 7A of the Act, 2000. Hence, this appeal is allowed and the conviction and sentence imposed upon the appellant by the impugned judgment is hereby set aside. It is directed that the case of the appellant be placed before the concerned Juvenile Justice Board for proceeding in accordance with law. Appeal allowed.