Chhattisgarh High Court: In a matter where the convict was convicted under Section 377 of the Penal Code, 1860 (‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) for sodomizing his friend/neighbour after watching pornographic material, a Single Judge Bench of Rajani Dubey, J., partly allowed the appeal holding that the convict deserved some reprieve. The Court also set aside his conviction under Section 4 of POCSO, holding that the prosecution had failed to establish that the victim was a minor at the time of the incident.
Background
On the day of the incident, the victim visited his friend/neighbour, the convict, to deliver some items that the convict had requested the victim to bring. Thereafter, the convict asked the victim to stay for a while and began watching pornographic material on his phone. When the victim began to leave, the convict forcefully laid him down on his bed and sodomized him. Somehow, the victim managed to flee and narrated the incident to his parents. Accordingly, an FIR was lodged against the convict, and a charge sheet under Section 377 IPC and Section 4 of POCSO was filed before the Trial Court.
In the medical examination, the doctor stated that the victim was indeed sexually abused, and the injuries around the anal region confirmed an unnatural sexual offence.
After appreciating the evidence available on record, the Trial Court convicted and sentenced the convict to rigorous imprisonment for 10 years and a fine of Rs.500 under Section 377 of IPC and Section 4 of POCSO each.
Hence, the present criminal appeal was filed by the convict.
Issue and Analysis
1.Whether the birth certificate was issued with delay can be taken into consideration for the determination of the age of the victim in criminal cases.
The Court noted that in the present case, the victim was in Jamuna, Kotma, District Annuppur, Madhya Pradesh, but his birth certificate was issued 10 years later by the competent authority of Korba in 2013. The Court further noted that the prosecution did not file any document of Jamuna nor regarding the inquiry proceeding by the competent authority of Korba regarding the delay in registration of date of birth as per Section 13 (3) of Chapter III of the Registration of Births and Deaths Act, 1969(‘the Act’), and on what basis, it has issued the birth certificate of the victim.
Another document on which the Trial Court relied upon was the mark list and the school admission register. In this regard, the Court noted that the school principal, in her witness testimony, stated that the date of birth of the victim was 09-03-2003 as per the school admission register, and he was admitted to class 6 on 04-07-2015. In her cross-examination, the school principal stated that she did not know from which school the victim had come after studying 5th class, and what documents were brought by the victim at the time of his admission to her school. She admitted that at the time of admission in class 6, the date of birth was recorded in the school admission register based on the date of birth written on the transfer certificate of the victim. She also admitted that she did not know till which class the victim studied in her school. She further stated that she could not tell when the victim left her school or the date on which he took the transfer certificate from the school.
Noting the aforesaid, the Court stated that the school principal was not the author of the school admission register and did not know on what basis the date of birth of the victim was recorded. The Court placed reliance on Alamelu v. State (2011) 2 SCC 385, wherein it was held that the transfer certificate which is issued by a government school and duly signed by the headmaster would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of little evidentiary value to prove the age of the prosecutrix in the absence of any material based on which the age was recorded.
The Court held that, admittedly, the basis of the entry made in the school admission register was not known to the principal of the primary school where the victim had studied. Further, the credibility of the birth certificate is under suspicion as the same was issued about 10 years after the birth of the victim, and the prosecution did not adduce the aforesaid documents regarding the delay in registration. Therefore, the Court held that it would be difficult to arrive at a definite conclusion that the victim, at the time of the incident, was a minor.
The Court remarked that the birth certificate, being a strong proof of age, must be taken into consideration, but if there was a delay of more than one year in issuing the birth certificate, the same shall be taken into consideration only after complying with Section 13(3) of Chapter III of the Act.
Thus, after considering the facts and circumstances of the case and the evidence regarding the victim’s age, the Court set aside the Trial Court’s finding that the victim was a minor at the time of the incident and acquitted the convict from the charge under Section 4 of POCSO.
2.Whether the convictconvict has committed the offence under Section 377 of IPC.
Upon perusal of the facts and evidence, the Court stated that the evidence of the victim and the doctor inspired full confidence and was sufficient to hold the convict under Section 377 of IPC. The Court found no illegality or infirmity in the conviction under Section 377 of IPC, thus, the same was upheld.
Considering the facts and circumstances of the case, overall evidence adduced by the prosecution, and the mode and manner in which the incident had taken place, the Court opined that some reprieve in the matter of sentence deserved to be given to the convict who had been incarcerated since more than four years.
Accordingly, the convict’s conviction under Section 4 of POCSO was set aside, and his sentence under Section 377 of IPC was reduced to rigorous imprisonment for seven years from 10 years. Thus, the criminal appeal was partly allowed with the above stated modification in the sentence.
[X v. State of Chhattisgarh, CRA No. 1381 of 2022, decided on 01-04-2025]
Advocates who appeared in this case :
For the petitioner: T.K. Jha
For the respondent: Nand Kumari Kashyap
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