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2024 DIGILAW 1849 (ALL)

State of U. P. v. Sandeep Vishwakarma

2024-08-07

ASHWANI KUMAR MISHRA, GAUTAM CHOWDHARY

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ORDER : ORDER ON DELAY CONDONATION APPLICATION NO. 01 OF 2024 1. Delay in filing the appeal has been explained to the satisfaction of the Court. 2. Delay in filing the leave to appeal is condoned. 3. The delay condonation application is, accordingly allowed. ORDER ON CRIMINAL MISC. (LEAVE TO APPEAL) APPLICATION 4. This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 06.02.2024, passed by Special Judge (Juvenile Court) Room No. 1/Additional Sessions Judge, Mau in Special Sessions No. 26 of 2017 (State Vs. Sandeep Vishwakarma) Arising Out of Case Crime No. 159 of 2017 under Sections 363, 366, 376 I.P.C. and Section 3/4 of POCSO Act, 2012 Police Station Ranipur, District Mau. 5. As per the prosecution case, on 23.04.2017 at about 07:30 P.M. when the informant's daughter aged about 17 years had gone to ease herself two youngsters came on a bike and took her away. The passerby informed about it to the informant. The victim was in touch with the accused Sandeep Vishwakarma from before and when the informant made necessary inquiry from the accused-opposite party, he did not inform anything to the father of the victim. On pressure being exerted, he said that the victim is with her friend and he would bring her back. On such assurance, he left his house on a motor cycle bearing registration no. UP54U-0438 and disappeared. The accused-opposite party had extended threats to the elder daughter of the informant and therefore doubt was expressed in the written report that the accused-Sandeep Vishwakarma along with his mother and brother has enticed the minor victim. On the basis of such written report, F.I.R. came to be lodged against the accused-opposite party in Case Crime No. 159 of 2017 under Sections 363, 366 I.P.C. and Section 7/8 of POCSO Act. The investigation proceeded in the matter and ultimately the victim was recovered. On the basis of her statement charge sheet was submitted against the accused-opposite party under Sections 363, 366, 376 I.P.C. read with Section 3/4 of POCSO Act. Cognizance in the matter was taken and the case was committed to the Court of Sessions. Charges were framed against the accused-opposite party in the above sections. The accused-opposite party denied the accusations made against him and consequently the trial proceeded. 6. At the stage of trial, the informant has been produced as PW-1. Cognizance in the matter was taken and the case was committed to the Court of Sessions. Charges were framed against the accused-opposite party in the above sections. The accused-opposite party denied the accusations made against him and consequently the trial proceeded. 6. At the stage of trial, the informant has been produced as PW-1. The victim has appeared as PW-2 and Dr. Mamta Sharma, who conducted medical examination of the victim has been produced as PW-3 and other witnesses are formal police personnels. Various documentary evidence including the medical examination report, supplementary medical report were filed in the case. 7. The prosecution evidence was confronted to the accused-opposite party for recording his statement under Section 313 Cr.P.C. The accused denied the evidence and has termed the evidence to be false and has pleaded his innocence. The accused-opposite party lastly submitted that the victim had come to his house on her own accord; she was major on the date of incident and he has been falsely implicated. He further stated that the victim has studied in primary institution at Akbarpur from Class-1 to 3 and he shall produce relevant evidence to prove the majority of victim. 8. The trial Court has taken up the issue of minority of the victim at the outset. There are two sets of evidence placed on record. From the side of the prosecution High School certificate of the victim has been produced wherein her date of birth is recorded as 08.05.2000. The prosecution case is that the victim was admitted in her school for the first time in Class-4 and she had not studied in any school from Class-1 to 3. On the strength of the High School certificate it was urged by the prosecution that such evidence being admissible and relevant in terms of Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act 2015 (hereinafter to be referred to as “the Act of 2015”) the victim ought to be treated as a minor. 9. On the contrary, the other evidence on record adduced by the defence witnesses is in the form of original school record of the Government Primary Institution where the victim studied from Class 1 to Class-3. The officiating Principal of the Government Primary institution has been produced in evidence where the victim had studied from Class 1 to Clsss-3. 9. On the contrary, the other evidence on record adduced by the defence witnesses is in the form of original school record of the Government Primary Institution where the victim studied from Class 1 to Class-3. The officiating Principal of the Government Primary institution has been produced in evidence where the victim had studied from Class 1 to Clsss-3. Original records were produced during trial to show that the victim was admitted on 28.07.2005 in the school and her name finds place at serial no. 179 of the scholars' register. She was promoted to Class-2 on 15.05.2006 and again to Class-3 on 30.05.2007. She was then admitted to Class-4 on 20.05.2008 but as she absented thereafter her name was struck off from the school rolls on 30.07.2009. The officiating Principal has produced the above records as also the original record wherein the date of birth of victim at the time of her admission to class-1 was recorded as 05.06.1998. It has further come in evidence that no transfer certificate was issued by the said institution where the victim studied up till Class-3. The testimony of defence witness, in this regard, has not been seriously questioned. 10. The victim in her statement before the Court however, disclosed her date of birth as 08.05.2000. She further claimed that her first admission in the school was in Class-4 and she had not studied in any previous school from Class 1 to Class-3. 11. The trial Court on the basis of evidence on record has accepted the defence version according to which, date of birth of the victim is 05.06.1998. For arriving at such conclusion, the Court has taken into consideration Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act 2015 which provides for presumption and determination of age where there is doubt in that regard. For arriving at such conclusion, the Court has taken into consideration Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act 2015 which provides for presumption and determination of age where there is doubt in that regard. Section 94 of the Juvenile Justice (Care and Protection of Children) Act 2015 provides for presumption and determination of age is reproduced hereinafter: “94(1) Presumption and determination of age: (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining: (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. (ii) the birth certificate given by a corporation or a municipal authority or a panchayat. (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 12. Section 94 (2) of Act 2015 provides where the committee or the board has reasonable ground to doubt whether a person brought before it is child or not, it shall undertake the process of age determination by seeking evidence specified in clauses (i), (ii) and (iii). 12. Section 94 (2) of Act 2015 provides where the committee or the board has reasonable ground to doubt whether a person brought before it is child or not, it shall undertake the process of age determination by seeking evidence specified in clauses (i), (ii) and (iii). Clause (i) provides date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; in the absence thereof, birth certificate given by a corporation or a municipal authority and in the absence thereof, medical evidence is to be relied upon for determination of age. 13. The provision, therefore clearly lets out a scheme priortising the evidence to be relied upon in a given case. At the top of the ladder is the date of birth certificate from the school or matriculation certificate or equivalent certificate from the concerned examination board. In the facts of the present case, we find that date of birth issued from the school where the victim was first admitted to Class-1 has been duly produced and exhibited during trial as per which, her date of birth is 05.06.1998. The other evidence is in the form of matriculation certificate. The matriculation certificate records the date of birth of victim as 08.05.2000. The basis for recording the date of birth in matriculation certificate is the date of birth of the victim recorded for the first time in Class-4. No explanation is furnished or any evidence adduced for recording the date of birth of victim in Class-4. The victim herself has stated that she has not studied in any school from Class-1 to Class-3 and that she was admitted in the school only in Class-4. 14. The trial Court has given preference to the date of birth of the victim recorded in Class-1 over her date of birth recorded in the matriculation certificate. The Court has found no reasons to disbelieve the defence evidence of victim's admission in Class-1 in the Government Primary Institution where her year of birth is 1998. The victim's explanation that she studied in no school from Class-1 to Class-3 has not been found reliable by the Court. The Court has doubted the victim's version that she did not attend any school uptill Class-3. 15. The victim's explanation that she studied in no school from Class-1 to Class-3 has not been found reliable by the Court. The Court has doubted the victim's version that she did not attend any school uptill Class-3. 15. Learned A.G.A. submits that once the matriculation certificate is produced in evidence it was not open for the Court to have ignored it or to have admitted in evidence any other material for determination of age of victim in view of Section 94 of the Act 2015. 16. The submission of learned State Counsel cannot be accepted. First and foremost it is to be borne in mind that the presumption stipulated under Section 94 of the Act 2015 is not conclusive and is rebuttable. This position has been clarified by the Supreme Court in Rishipal Singh Solanki Vs. State of Uttar Pradesh and others, 2022 (8) SCC 602 . In Para 33.3 and 33.4 of the report, the Court has held as under: 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 Rules 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 the 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. 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 party. 17. The view in Rishipal Singh (supra) has been reiterated by the Supreme Court in Narain Chetan Ram Chowdhary Vs. State of Maharashtra, 2023 Live Law (SC) 244. In Para 37 the Court has observed as under: 37. 17. The view in Rishipal Singh (supra) has been reiterated by the Supreme Court in Narain Chetan Ram Chowdhary Vs. State of Maharashtra, 2023 Live Law (SC) 244. In Para 37 the Court has observed as under: 37. In the cases of Ramdeo Chauhan (supra), Sanjeev Kumar Gupta vs. State of Uttar Pradesh and Another, (2019) 12 SCC 370 , Parag Bhati (supra), Manoj (supra), Babloo Pasi vs. State of Jharkhand and Another, (2008) 13 SCC 133 and Birad Mal Singhvi (supra), different Benches of this Court came to findings as regards reliability of the documents upon applying mind and none of these authorities lay down that the certificate of date of birth by the school authorities based on admission register of the school will not be acceptable for an inquiry under Section 9(2) of the 2015 Act. On the other hand, in the order of priority in the aforesaid provision, the date of birth certificate by the school authority has been given the pre-eminence. Though the heading of the said section reads “presumption and determination of age” the section itself does not specify that the date of birth certificate by the school would only lead to presumption. The way the provision thereof has been framed, the documents referred to in the first two sub-clauses of sub-section (2) of Section 94 of the 2015 Act, if established in the order of priority, then the dates reflected therein has to be accepted to determine the age of the accused or convict claiming to be a juvenile on the date of commission of the offence. In the event the document referred to in Section 94 (2) (i) is there, the inquiring body need not go to the documents referred to in sub-clause (ii) thereof. The only caveat, implicit thereto, which has been sounded by several decisions of this Court, is that the document must inspire confidence. But lack of inspiration of the age determining authority must come for some cogent reason and ought not to be sourced from such body's own perception of age of the juvenile-claimant. 18. If the argument of learned State Counsel is accepted then the moment matriculation certificate of victim is produced by the prosecution there would be no scope for the accused to show that the basis of age in the matriculation certificate is not reliable. 18. If the argument of learned State Counsel is accepted then the moment matriculation certificate of victim is produced by the prosecution there would be no scope for the accused to show that the basis of age in the matriculation certificate is not reliable. This approach will restrict the right of the accused to prove his innocence by producing legally admissible evidence. It will also impede the right of accused to a fair trial. The approach suggested by the State Counsel, for such reasons, cannot be accepted. 19. Section 94 (2) (i) of the Act 2015 places the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board in the same category. It would therefore be open for the Court to admit defence evidence with regard to reliability of the date of birth entry in the matriculation certificate as has been done herein. 20. The statute accords recognition to the date of birth certificate from the school at par with the matriculation certificate. Where the date of birth in the above two records are distinct it would be permissible for the Court to evaluate the evidence on record and accept one at the cost of other. In this case, we find that original records of the first school where the victim was admitted in Class-1 has been produced and is found reliable. The basis of date of birth in the matriculation certificate is not disclosed and the victim's version that she attended no school from Class-1 to Class-3 has not been found convincing and reliable. In our opinion, the view taken by the trial judge to accept the date of birth certificate from the school by overlooking the matriculation certificate is clearly a permissible view on the basis of evidence on record. The approach of the trial judge is otherwise in keeping with the well settled principle that the accused is to be presumed innocent till he is proven guilty. The approach of the trial judge is consistent with the principles of a fair trial since the accused is given the opportunity to produce evidence and rebut the presumption which otherwise arises on a matriculation certificate by virtue of Section 94 (2) (i) of the Act 2015.The finding of the trial judge that victim on the date of incident was major is thus sustained. 21. 21. So far as the allegation with regard to victim having been enticed or subjected to sexual assault is concerned, the evidence on record clearly shows that the victim in her statement recorded under Section 161 and 164 Cr.P.C. has categorically stated that she had gone with the accused-opposite party on her own volition. The victim at the relevant point of time was studying in Intermediate in V.D.P. Intermediate College and she was in touch with the accused-opposite party for the last more than a year. She has admitted that she left with the accused-opposite party on his motor cycle and thereafter travelled to various places, including by train to Mumbai for more than six days. The victim remained with the accused-opposite party at Mumbai and physical relations were voluntarily formed by the victim with the accused-opposite party. It is only after return to Mau and coming in contact with her parents that the victim took a contrary stand by asserting that she was forcibly taken by the accused-opposite party and was subjected to sexual assault. The trial Court has examined the evidence on record and the subsequent change in her version has been found inconsistent with the evidence placed on record. In the medical examination also, the victim was found major. No injury either external or internal was found on the victim. The victim had clearly stated before the Magistrate under Section 164 Cr.P.C. that physical relations were established with her consent by the accused-opposite party therefore, the fact that victim's hymen was found ruptured could not have been construed as an evidence supporting the prosecution case. 22. On the basis of elaborate analysis of the evidence placed on record before the trial Court, the Court has returned the finding that the prosecution has failed to establish its case beyond all reasonable doubt. We have been taken through the Judgment of trial Court and we find that neither any triable issue is raised before us nor any perversity or contradiction is shown in the judgment of acquittal, which may persuade us to grant leave to assail the Judgment of acquittal. Law is otherwise settled that where the view taken by the trial judge to acquit the accused is a permissible view, the appeal Court would not interfere only because a different view could be taken in the matter. 23. Law is otherwise settled that where the view taken by the trial judge to acquit the accused is a permissible view, the appeal Court would not interfere only because a different view could be taken in the matter. 23. In that view of the matter, we find no good ground to interfere in the matter so as to grant leave to appeal to the State in order to assail the Judgment of acquittal. 24. Application for grant of leave to appeal is, accordingly, refused and the appeal consequently fails and is dismissed.