Criminal Appeal No.597 of 2005

24th May, 2018.

Petitioner Counsel: Shri R.H. RAWLANI
Respondent Counsel: Ms. SANGEETA JACHAK

Cases Cited:
Mahadeo S/o. Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637 [Para 5,7]

JUDGMENT

JUDGMENT :- Heard Shri R.H. Rawlani, Advocate for the appellant and Ms. Sangeeta Jachak, APP for the respondent/State.

2. The appellant/accused has filed this appeal to challenge the judgment passed by the Sessions Judge convicting him for the offences punishable under Section 363, Section 366 and Section 376 of the Indian Penal Code, and sentencing him as stated in the impugned judgment.

3. The case of the prosecution is :-

The informant/Sayeda Begum (mother of the victim) lodged report with Police Station Koradi on 04/04/2004 stating that the victim (aged about 15 years) was sexually assaulted by the appellant/accused on several occasions. On receiving the complaint, the Investigating Officer conducted the investigation, arrested the appellant/accused on 13/04/2004 and after completing the investigation and the necessary formalities, chargesheet was filed in the Court of the J.M.F.C. As the offences punishable under Section 366A and Section 376 are triable by the Sessions Court, the case was committed to the Sessions Court. The learned Sessions Judge framed charges and explained them to the appellant/accused. The appellant/accused did not accept the guilt and claimed to be tried. After conducting the trial, the learned Sessions Judge recorded that the prosecution has proved its case and convicted the appellant/accused and sentenced him as stated in the impugned judgment.

4. The learned advocate for the appellant/accused has made various submissions. One of the submission is that the prosecution has not been able to establish that the victim was minor aged about 15 years at the time of alleged incident. The learned advocate for the appellant/accused has pointed out relevant considerations by the Sessions Court on the point of age of the victim, as recorded in para no. 13 of the impugned judgment. The prosecution relied on the school leaving certificate (Exh. 51) of the victim issued by Pragatik Madhyamik Vidyalaya, Koradi, and the evidence of Head Mistress of the school (PW-7) to prove the age of the victim, and considering this evidence, the learned Sessions Judge has concluded that the date of birth of the victim is 12/01/1989. The learned advocate for the appellant/accused has submitted that the school leaving certificate (Exh. 51) was issued by the school where the victim had taken admission in 5th Standard and in view of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short "the Rules of 2007"), the school leaving certificate issued by the school where the victim had taken admission in 5th Standard cannot be the conclusive proof of her age.

5. Rule 12 (3) of the Rules of 2007 reads as follows:-

"12(3):In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

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

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

It is submitted that the above rules are to be applied while determining the age of the victim also. To support the submission, reliance is placed on the judgment given in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., reported in (2013) 14 SCC at page 637. In para no. 12, the Hon'ble Supreme Court has recorded as follows:-

"Under Rule 12 (3) (b), it is specifically provided that only in the absence of alternative methods described under Rule 12 (3) (a) (i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the Courts for the purpose of the ascertaining the age of a victim as well." (Emphasis supplied)

6. The learned APP argued that the school leaving certificate of the victim produced by the prosecution and proved by the Head Mistress (PW-7) in her evidence cannot be discarded, and the learned Sessions Judge has rightly relied upon the documentary evidence to conclude that the date of birth of the victim is 12/01/1989 and that the victim was aged about 15 years and two months at the time of the alleged incident.

7. Considering the provisions of Rule 12 (3) of the Rules of 2007 and the proposition laid down in the judgment given in the case of Mahadeo S/o Kerba Maske (supra), I am of the view that the school leaving certificate (Exh. 51) cannot be relied upon to hold that the victim was aged about 15 years and two months at the time of the alleged incident. It is well settled that when the statute provides that if something is required to be done in a particular manner, the same should be done in that manner. In the present case, there is no explanation on behalf of the prosecution as to why the certificate of the victim from the school first attended by her, showing the date of birth, was not produced as provided by Sub-clause (ii) of Clause (a) of Sub-rule (3) of Rule 12 of the Rules of 2007. There is no explanation on behalf of the prosecution as to why the prosecution has not produced the birth certificate issued by the Corporation or Municipal Authority or Panchayat to prove the date of birth of the victim. The provisions of Sub-rule (3) of Rule 12 of the Rules of 2007 are very clear and provide that date of birth should be proved by producing matriculation or equivalent certificate if available, and if this certificate is not available, then the certificate issued by the school first attended by the victim showing the date of birth should be produced and if this certificate is also not available, then the date of birth certificate issued by the Corporation or Municipal Authority or Panchayat should be produced.

The learned APP has pointed out that the victim has not studied upto matric and therefore matriculation or equivalent certificate of the victim was not available. Even if this submission is accepted, as recorded earlier, there is no explanation for not producing the certificate issued by the school first attended by the victim, showing her date of birth. It is not the case of the prosecution that it was not possible for it to produce the certificate issued by the school first attended by the victim. In the evidence of Smt. Mandakini/Head Mistress (PW-7), it has come on record that the school leaving certificate issued by the school where the victim was studying earlier was produced when the admission of the victim was sought in Pragatik Madhyamik Vidyalaya, Koradi. This shows that the school leaving certificate issued by the school first attended by the victim was available but for the reasons best know to the prosecution, attempts were not made to produce the relevant documentary evidence.

8. In view of the above, it has to be held that the prosecution has failed to prove the age of the victim and the fact that the victim was below 16 years of age at the time of the alleged incident.

9. The evidence of the victim (PW-4) shows that the appellant/accused and the victim had gone to Koradi, Chandrapur (at the house of maternal aunt of the appellant/accused), the appellant/accused had introduced the victim as his wife and the victim had also stayed at the house of Jarman Khan at Ramnagar, Nagpur as tenant for the period from 21/03/2004 till 13/04/2004. The evidence on record is not sufficient to hold that the appellant/accused had sexual intercourse with the victim against her will and/or without her consent.

10. Similarly, I find that the evidence on record is not sufficient to hold that the appellant/accused has committed offences punishable under Section 363 and Section 366 of the Indian Penal Code.

11. The learned Sessions Judge has dealt with the matter considering that the victim was aged about 15 years and two months which has adversely affected his conclusions.

12. Hence, the following order is passed:

ORDER

a) The impugned judgment passed by the learned Sessions Judge is set aside.

b) The conviction of the appellant/accused for the offences punishable under Section 363, Section 366 and Section 376 of the Indian Penal Code is quashed.

c) The appellant/accused is acquitted of all the charges framed against him for the offences punishable under Section 363, Section 366 and Section 376 of the Indian Penal Code.

d) The appeal is allowed in the above terms.

e) The bail bond of the appellant/accused stands cancelled.

f) The Muddemal property be destroyed after the appeal period is over.

Appeal allowed.