1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1529 of 2019 1 - Harakhnath @ Harkhu Yadav S/o Gouri Shankar Yadav, Aged About 21 Years R/o Village Chhichhli, Police Chowki Pandrapath, Police Station Bagicha, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh Through The Station House Officer, Police Station Bagicha, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Sushil Dubey, Advocate. For Respondent(s) : Mr. R. C. S. Deo, Panel Lawyer. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 27/01/2025 1. The appellant has filed the instant criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 16.09.2019 passed by learned Special Judge (Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989) Jashpur, District Jashpur in Special Criminal Case Under SC/ST Act No. 01/2019, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 376(2) (i) of IPC R.I. for 10 years and fine of Rs. 1000/-, 2 in default of payment of fine 03 months additional R.I. Under Section 506 Part-II of IPC R.I. for 01 year and fine of Rs. 500/-, in default of payment of fine 01 month additional R.I. Both the sentences shall run concurrently. 2. Brief facts of the case are that the father of the victim PW-6, lodged a written report on 26.11.2018 against the appellant with the allegation that at about 08:00 a.m., when he return to his house, his wife and daughter had informed him that on 25.11.2018 at about 03:00 p.m. when she was grazing she-gots, the appellant dragged his daughter towards jungle side and committed rape upon her, when she protested he threatened with dire consequences. Based on the written complaint Ex.P/11, the FIR Ex.P/12 was registered against the appellant under Section 376 of the IPC and Section 4 of the POCSO Act. The victim was sent for her medical examination to the Community Health Centre, Bagicha, where PW-3 Dr. Sangeeta Tirki has medically examined her and found multiple scratches present on both her hands (forearms), hymen ruptured (fresh with redness), and mild tenderness present on the lower abdomen. The doctor has opined that the victim has undergone sexual intercourse. Two slides of her vaginal smear were prepared, sealed and handed over to the police for its chemical examination. The MLC report of the victim is Ex.P/4. 3. Spot map Ex.P/9 was prepared by the police, and Ex.P/2 was prepared by the Patwari. With respect to the age and date of birth of the victim, the police have seized the school register from Primary School, Kadamtoli, vide seizure memo Ex.P/10. After retaining the attested true copy of the school register, Ex.P/27-C, the original register was returned to the school. 4. A certificate with respect to the date of birth of the victim has also been obtained from the Headmistress of the school on the basis of the school 3 register, which is Ex.P/29. The appellant was arrested on 14.12.2018, and he too was sent for his medical examination to the Community Health Centre, Bagicha, where he was medically examined by Dr. Jayant Bhagat PW-4, who gave his report Ex.P/6 and Ex.P/7 and opined that the appellant is capable of sexual intercourse. The laggies, underwear and vaginal slide of the victim was sent for chemical examination to regional FSL, Ambikapur, District Surguja from where report Ex.P/25 was received and according to the FSL report in the underwear and vaginal slide of the victim semen and sperms were found present. 5. Statement of the witnesses under section 161 of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C. have been recorded and after completion of the usual investigation charge-sheet was filed before the learned trial Court for the offence under Section 376 of IPC and Section 4 of POCSO Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989 (in short “SC/ST Act”). 6. The learned trial Court has framed the charge against the appellant for the offence under Section 376 (2)(i), 506-II of IPC, 3(2)(v) of SC/ST Act and Section 4 of POCSO Act. The appellant denied the charge and claimed trial. 7. In order to prove the charge against the appellant, the prosecution has examined as many as 12 witnesses. Statement under Section 313 of Cr.P.C. of the appellant has also been recorded in which he denied the circumstances that appear against him, pleaded innocence and submitted that he had seen the victim in a compromising position with one Ujjawal Yadav and therefore he has been falsely implicated in the offence. One defence witness has been examined by the appellant in his defence. 8. After appreciating oral as well as documentary evidence led by the prosecution, the trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 4 9. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses, which cannot be made the basis to convict him in the offence in question. There is no legally admissible evidence with respect to the date of birth of the victim to prove that she was a minor and less than 18 years of age on the date of the incident. The school register Ex.P/27-C has not been proved in accordance with the law. He would further submit that the report has been lodged against the appellant on the instance of one Ujjwal Yadav and the victim has admitted in her evidence that he informed the name of the present appellant the victim could not identify the appellant and there is no test identification parade conducted by the prosecution, therefore, there is lack of cogent and clinching evidence and the appellant is entitled for acquittal. 10. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond a reasonable doubt. But for minor omissions or contradictions, the evidence of prosecution witnesses is fully reliable. The evidence of the victim is not required to be corroborated yet, there is corroborative evidence in the present case that she was subjected to rape by the appellant. The injuries have been found on both the hands of the victim and in FSL report semen and sperms were found on the vaginal slide and underwear of the victim which further support the prosecution case. The age of the victim is proved by the school record, which has been proved by PW-9, who is the Headmistress of the school, therefore, there is sufficient evidence on the record against the appellant to convict him for the alleged offence. The learned trial Court has rightly appreciated the evidence available on record, which needs no interference. 11. I have heard learned counsel for the parties and perused the record of the trial Court. 5 12. The first and foremost question that arises for consideration would be the age and date of birth of the victim. The prosecution has mainly relied upon the school register Ex.P/27-C and certificate Ex.P/29 issued by the PW-9, who is the Headmistress of the school. The PW-9 have stated in her evidence that she has been posted as Headmistress in Government Primary School, Kadamtoli, since 1996. The police have seized the school register with respect to the date of birth of the victim vide seizure memo Ex.P/10. After retaining the attested true copy of the school register Ex.P/27-C, the original register has been returned to the school. She also gave a certificate with respect to the date of birth of the victim, which is Ex.P/29, and the progress report card of the victim of Class-5 is Ex.P/30. In cross-examination, she denied that at the time of admission of the victim in the school, she was posted as Headmistress. She admitted that she has not made an endorsement, the basis on which the date of birth of the victim is recorded in the school register. She further admitted that there is overwriting in the date and year of birth of the victim recorded in the school register. This witness has also proved the Certificate Ex.P/29 in which she certified that the date of birth of the victim is 06.07.2004 as recorded in the school register, and the defence has not cross-examined this witness on this point, and the certificate Ex.P/29 is not challenged in her cross-examination. 13. The victim PW-5 disclosed her age at the time of recording of her evidence as 14 years. In cross-examination, she admitted that she did not know on what basis her date of birth is recorded in the school register. 14. PW-6, the father of the victim, has stated in his evidence that the victim was about 13-14 years of age and he could not remember her date of birth. In cross-examination, he stated that he had recorded the date of birth of the victim in the school register. The date of birth of the victim is recorded on the basis of information given by the Anganbadi workers, and the same was recorded in the school. 6 15. PW-7, mother of the victim, has also stated in her evidence that the year of birth of the victim is 2005. In cross-examination that she could not remember the date of birth of the victim. She voluntarily stated that the year of her birth is 2005. Her husband has recorded the date of birth of the victim in the school. 16. PW-3, Dr. Sangeeta Tirki, who medically examined the victim, has also stated that the victim, who was about 14 years and 4 months of age, was brought before her for her medical examination. She has not been cross-examined on the point of her age. 17. In the matter of “Jarnail Singh v. State of Haryana” 2013 (7) SCC 263, the Hon'ble Supreme Court in Para 22 to 24 held that:- “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. 7 (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. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating 8 the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or 9 equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. 24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW - PW6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied upto class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW-PW6, on the next available basis, in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW4), to prove the age of the prosecutrix VW – PW6. Satpal (PW4) was the Head Master of the Government High School, Jathlana, where the prosecutrix VW - PW6 had studied upto class 3. Satpal (PW4) had proved the certificate Exhibit-PG, as having been made on the basis of the school records indicating, that the prosecutrix VW - PW6, was born on 15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, 10 and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view, that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW – PW6. It would also be relevant to mention, that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material including the ossification test, for determining the age of the prosecutrix VW-PW6. The deposition of Satpal-PW4 has not been contested. Therefore, the date of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as 15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix VW-PW6, was less than 15 years old on the date of occurrence, i.e., on 25.3.1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW - PW6 was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix VW-PW6 had accompanied the accused-appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor.” 18. Considering the facts and circumstances of the case, evidence available on record as well as the law laid by the Hon’ble Supreme Court in Jarnail Singh case (supra), the learned trial Court has held that on the date of incident the victim was minor and less than 16 years of age in which, I do not found any perversity or illegality. 19. So far as the offence of rape upon the victim is concerned, I again examined the evidence available on record. 20. PW-5, the victim, has stated in her evidence that she knew the appellant, who is a resident of the village Chichli. On 25.11.2018 at about 03:00 p.m. when she was grazing her she-gots in the jungle, the appellant came there, dragged her towards jungle and committed rape upon her. When she protested, he threatened her that he would kill her. She rushed to her house 11 crying and informed the incident to her mother. At that time, her father was not there in the house, and on the next day, when her father came back, her mother informed him about the incident, and then the report was lodged. In cross-examination, she also stuck to saying that at the time of the incident, she was grazing her she-gots in the jungle. She denied the suggestion given by the defence that she had not disclosed the incident to her mother. She voluntarily stated that she was crying, and on being asked by her mother, she disclosed the entire incident to her. Though she admitted that when she came back to her house from the place of the incident, she did not disclose the name of the appellant, and when her father asked about the incident in detail, she disclosed his name. She further admitted that Ujjwal has informed the name of the appellant. She also denied the suggestion that the appellant had seen her with Ujjwal in an objectionable condition and said that he would inform her parents. She also denied that on the instance of Ujjwal, she lodged the report against the appellant. She further stated that she disclosed the incident to her grandmother also. She further stated that she received injuries on her hands and back. On the next day, when her father came back, she lodged the report against the appellant. In her cross-examination, the defence could not elicit any material that makes her evidence doubtful. 21. The evidence of the victim, PW-5, is supported by the evidence of Dr. Sangeeta Tirki, PW-3, who medically examined the victim. She proved the injuries found on both the hands of the victim, the hymen was ruptured fresh with redness and mild tenderness present on the lower abdomen. In cross- examination, though she admitted that in case of forceful sexual intercourse the victim might have received injuries on her elbow, ankle, back and back side of thigh but she voluntarily stated it depends upon the surface of the place of incident and in the present case, she found abrasions on hands of the victim. After her examination, she found tenderness on her lower 12 abdomen. From her evidence, it has been proved that the victim was subjected to sexual intercourse. 22. The allegation of the victim has further been supported by the FSL report Ex.P/25 in which the underwear and vaginal slides of the victim was found to be stained with semen and sperms. 23. PW-7, mother of the victim has stated in her evidence that on the date of incident at about 03:00 p.m. her daughter came back after grazing the she- gots and informed that the appellant has committed rape upon her. Thereafter, they went to the police station and lodged the report. In cross- examination, she stated that on that day her husband was not present in the house and had gone to the village Chichli. She stated in her evidence that her daughter came back to the house by running, and her she-gots came later. She denied that the victim had disclosed the name of any person. She proved that immediately after the incident, the victim informed about the incident, which she suffered by the appellant. 24. PW-6, the father of the victim, has also stated that on the next day of the incident when he came back to his house, he was informed about the incident with his daughter by the appellant. Thereafter, he lodged the report to the police. 25. No benefit can be extended to the appellant from the evidence of the defence witness No.1, as he himself is not the witness to the incident, nor has he seen the victim along with Ujjwal Yadav. He stated in his evidence that the appellant has informed him that he had seen the victim and Ujjwal in a compromising position, but in cross-examination, he did not disclose the date on which the appellant had informed him about the same. He has not informed the incident to any of the village persons, and his evidence is casual. 26. From the entire evidence led by the prosecution, the learned trial Court held the appellant guilty for the offence under Section 376(2)(i), 506 Part-II of IPC 13 and Section 4 of the POCSO Act. However, the appellant was acquitted of the offence of Section 3(2)(v) of the SC/ST Act. 27. The appellant was charged with the offence of Section 376(2)(i) and 506 Part-II of the IPC and Section 4 of the POCSO Act. Section 376(2)(i) of IPC is omitted with effect from 21.04.2018 by the amendment Act 22 of 2018. The present incident occurred on 25.11.2018, i.e. after the amendment incorporated in the IPC, and at that time, the provisions of Section 376(2)(i) had already been omitted. 28. The appellant was also charged under Section 4 of the POCSO Act, in which the punishment for penetrative sexual assault is provided. The penetrative sexual assault is defined in Section 3 of the POCSO Act, which reads as under :- "3. Penetrative sexual assault-A person is said to commit "penetrative sexual assault" if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any. (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other other person; or person." 29. Section 4 of the POCSO Act has been amended with effect from 16.08.2019, and prior to the amendment, the following provisions of Section 4 were there. "4. Punishment for penetrative sexual assault - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life. and shall also be liable to fine." 30. After the amendment with effect from 16.08.2019 by the Act 25 of 2019 with effect from 16.08.2019, the following provisions of Section 4 are there: 14 4. Punishment for penetrative sexual assault (1) - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life. and shall also be liable to fine. "(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which which may shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine. (3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim. " 31. In the present case, the provisions of Section 4 before the amendment are applicable as the date of the incident, 25.11.2018, which is before the amendment incorporated in Section 4 of the POCSO Act. As per the unamended Section 4 of the POCSO Act, the minimum sentence provided is 07 years, which may extend to imprisonment for life. 32. From the aforesaid discussions, the appellant cannot be sentenced for the offence of Section 376(2)(i) of the IPC as the said provision has already been omitted on the date of the incident. However, the appellant can be convicted for the offence under Section 4 of the POCSO Act, as applicable on the date of the incident, i.e. on 25.11.2018. 33. Therefore, the conviction and sentence awarded to the appellant for the offence under Section 376(2)(i) of the IPC are hereby set aside. The conviction and sentence awarded to the appellant for the offence under Section 506 Part-II of the IPC are hereby maintained. The conviction of the appellant under Section 4 of the POCSO Act is hereby maintained, and he has been sentenced for R.I. for 07 years with fine of Rs. 1000/- in default of payment of fine, further R.I. for 03 months. All the sentences are directed to run concurrently. 34. With the above modification/alteration in conviction and sentence, the appeal is partly allowed. 15 35. The appellant is reported to have been in jail since 14.12.2018, he is entitled for set-off of his undergone period during the trial as well as during the appeal. 36. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 37. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.06.03 11:07:02 +0530