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Tulachha Ram vs State on 21 December, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
D.B.CRIMINAL APPEAL NO.219/2018
Tulachha Ram S/o Deepa Ram, Aged About 25 Years, B/c Jat,
R/o Malasisar, P.S. Sardarshahar, Dist. Churu.
(Lodged At Central Jail, Jodhpur)
—-Appellant
Versus
State Of Rajasthan, Through PP
—-Respondent

For appellant : Mr. J.S. Choudhary Sr. Advocate
assisted by Mr. Pradeep Choudhary
For Respondent : Mr. J.P.S. Choudhary, PP

HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

Per Hon’ble Mr. Vinit Kumar Mathur, J.

21/12/2018

The present appeal under Section 374(2) has been preferred

by the appellant against the judgment dated 29.09.2018 passed

by learned Special Judge, POCSO Act, Jaisalmer in Sessions Case

No.02/2018 (01/2017), whereby the accused-appellant has been

convicted for the offences under Sections 5 (j) (ii)/6 of Protection

of Children from Sexual Offences Act, 2012 and sentenced to

undergo life imprisonment with fine of Rs.1,00,000/-, in default of

payment of fine to further undergo six months rigorous

imprisonment.

The prosecution case in short emanates from the complaint

filed by Surendra Singh (PW3) to the Station House Officer, Police

Station Mahila, Jaisalmer wherein it was stated that he was
(2 of 12) [CRLA-219/2018]

engaged in agricultural job at 53 Sada Minor District Jaisalmer. His

mother-in-law, father-in-law along with two sisters-in-law used to

reside and did farming jobs in the Dhani constructed in the field of

Balveer Punia located at Chak 30 SLD. Mamraj and his Munim

Tulchha Ram used to regularly visit their place. 3-4 months back,

Tulchha Ram committed rape on his sister-in-law, aged 16 years

(hereinafter referred to as ‘Victim’). Tulchha Ram under the guise

of marrying her, he used to repeatedly commit rape upon her.

Thereafter, Tulchha Ram regularly used to visit their Dhani and

threatened her that he was in possession of some obscene

photographs of the victim. The accused-appellant used to

blackmail her on the strength of these photographs and commit

rape upon her. Mamraj Jat threatened his sister-in-law of dire

consequences, if she did not fulfill the demands of accused

Tulchha Ram. His sister in law became pregnant and entire family

was aware of this fact. Balveer Punia was informed about this

incident who also threatened them not to disclose this fact and

instructed to get abortion done of the victim, failing which entire

family was threatened to be killed.

On the aforesaid complaint, a formal FIR No.64/2016 was

registered at Police Station Mahila Thana, Jaisalmer against the

accused appellant for the offences under Sections 376, 120-B IPC

and section 3/4 of POCSO Act and commenced investigation.

After completion of investigation, the police filed a charge-sheet

against the accused appellant for the offences under section 376

IPC and section 3/4 of POCSO Act.

Learned Trial Court framed charges against the accused-

appellant for the offences under Sections 5(j) (ii)/6 of POCSO Act
(3 of 12) [CRLA-219/2018]

and the same was read over and explained to him but he pleaded

not guilty and sought trial.

During the trial, the prosecution examined as many as 22

witnesses and exhibited 31 documents in its support.

The accused-appellant was examined under Section 313

Cr.P.C. and he was confronted with the evidence adduced against

him during the course of trial to which he denied and stated that

he had been falsely implicated in the present case and that he was

innocent.

Learned trial Court after hearing the arguments, convicted

and sentenced the accused-appellant vide judgment dated

29.09.2018 for the offences under sections 5 (j) (ii)/6 of POCSO

Act. Hence, this appeal.

We have heard Mr. J.S.Choudhary, Sr. Advocate assisted by

Mr. Pradeep Choudhary appearing on behalf of the accused-

appellant as well as learned Public Prosecutor.

Learned counsel for the appellant submits that in view of the

sworn statement of the victim (PW1), it is a case of consensual

relationship as the victim was staying with her mother, father in

the Dhani constructed at Chak 30 SLD and while they were

engaged in farming, their family was regularly visited by the

appellant and during these meetings, friendship developed

between them. Since, the victim wanted to marry the appellant

but there was a stiff resistance from the mother and father of the

victim to the same on the ground that they belonged to Rajput

community and the appellant was a Jat. For this reason, the

present complaint was got filed and the appellant was prosecuted.

(4 of 12) [CRLA-219/2018]

He further submits that as far as age of the victim is

concerned, she is well above the age of 18 years as she herself in

her statement gave out her date of birth as 20.04.1998

therefore, on the date of incident i.e. in the year 2016, she was

well above the age of 18 years.

He further submits that as per statement of PW-2 Mal Singh

(father of the victim), also admitted that his daughter is about 20

years of age. When she was admitted in the school, she was 6-7

years of age and her teacher had written lesser age in the school

record. Therefore, as per Shri Choudhary, Ex.P-14 i.e. certificate

of the Principal showing age of the victim is of no consequence.

He further submits that even on earlier occasions, the victim

had gone with the appellant of her own free will and volition. Even

the victim in her statement stated that the relations were

established with her own consent and since she is a major person,

her consent is the concluding factor.

He further submits that as per Ravi Kumar (PW-5) and

Jasnath (PW-6), the victim wanted to marry the appellant and,

therefore, on earlier occasion, she had gone away with him.

Learned counsel on the strength of these arguments submits

that in view of statements of the prosecution witnesses, the

prosecution could not prove beyond reasonable doubt that present

appellant is guilty of the alleged offences and therefore, the trial

court committed grave factual and legal error while convicting the

appellant for the alleged offences.

On the other hand, the learned Public Prosecutor has

vehemently opposed the submissions advanced by learned counsel

for the appellant and submitted that it has come on record in the
(5 of 12) [CRLA-219/2018]

statements of the victim recorded under Section 161 164 of

Cr.P.C. that she was 16 years of age and the appellant committed

rape on her against her wishes and free will. He further submits

that during investigation, the police obtained a certificate from the

Principal, Government Secondary School, Bhojasar Chhota

(Churu) wherein the date of birth of the victim is recorded as

20.09.2000. There is no reason to discard the material piece of

documentary evidence available on record and, therefore, he

submits that since the victim is below the age of 18 years, her

consent in the matter is irrelevant. He, therefore, submits that

the learned trial Court was justified in convicting the appellant for

the offences under Section 5 (j) (ii)/6 of POCSO Act.

We have considered the submissions made at the bar and

have closely scrutinized the entire record.

The victim (PW1) deposed before the trial court that she had

studied upto 8th standard and was 20 years of age as her date of

birth is 20.04.1998. She further stated that a purely consensual

physical relationship was established between her and the

accused-appellant Tulchha Ram and she wanted to marry him but

her mother and father were opposed to such relationship. She

further stated that in the school, her date of birth was recorded as

20.10.2000 at the instance of her father. She went with the

accused on earlier occasion out of her own wish. Since,

examination of the victim was in question and answer form, to

appreciate her statement with more clarity, some of the questions

and their answers in the statement of PW1 are reproduced

herewith in a vernacular :-

(6 of 12) [CRLA-219/2018]

“iz’u % vki dkSulh d{kk esa irh gS] tUefrFkh dc dh gS
mrj % vkBoh esa irh gwWA esjh mez 20 lky gSA tUefrFkh 20-04-1998
gSA
iz’u % xyr dke fdlus fd;k
mrj % jktheu ls rqyNkjke ls fd;k FkkA rqyNkjke us esjs lkFk xyr
dke fd;k Fkk tks esjs jktheu ls gqvk Fkk

iz’u % ?kVuk ekW dks crk;h D;k gqvkA
mrj % ekW dks eSus dgk Fkk fd eS blls ‘kknh da:xh rks ekW o ikik us
euk dj fn;kA

izfrijh{k.k
iz’u % Ldqy esa vkidh mez D;k fy[kh gS
mrj % 20-10-2000 tUefrFkh fy[kh gSA
iz’u % fdlus fy[kok;h Fkh
mrj ikik us fy[kok;h FkhA
iz’u % rqyNkjke ls fookg djuk pkgrh gks
mrj gkWA
iz’u % ?kVuk ls igys rqyNkjke ds lkFk igys xbZ Fkh D;k
mrj % gkWA igys ,d ckj viuh ethZ ls xbZ FkhA ”

PW2 Mal Singh, father of the victim stated that they were

working on the land of Balveer Singh Punia located at Chak 30

SLD where rape was committed with his daughter by accused

Tulchha Ram. His daughter told her mother that she wanted to

marry the appellant but he refused and lodged the complaint. He

further stated that age of his daughter was 20 years but he did

not remember her exact date of birth. He admitted his daughter in

the school where her date of birth was written by her teacher by

showing her to be younger than she actually was. He further

stated that marriage of the victim could not be solemnized with

the accused-appellant who is Jat by caste and they being of Rajput

community. Since his daughter was insisting upon marrying the

appellant, he filed this complaint. His daughter never complained

that the accused Tulchha Ram had ever forcibly committed rape

with her.

PW3 Surendra Singh lodger of the FIR was declared hostile.

(7 of 12) [CRLA-219/2018]

PW4 Santosh Kanwar (mother of the victim) stated almost

on the same lines as stated by PW2 Mal Singh.

PW5 Ravi Kumar and PW6 Jasnath stated in their statements

that they knew the accused-appellant. The victim had gone with

the accused Tulchha Ram on earlier occasion out of her own free

will and volition.

PW8 Dr. Anil Mathur who was member of the Board

examined the victim and opined that on examination of the victim,

it was found that there was no injury on her private parts and she

was carrying a fetus of one month.

PW13 Jetha Ram is the investigating officer who conducted

the investigation of the matter and stated that he prepared the

site plan, recorded statements of the witnesses, collected the

samples and after conducting the investigation, as prescribed in

law, submitted his report before the court of competent

jurisdiction. In the cross examination, he stated that as per the

statements of the victim recorded under section 161 and 164 of

Cr.PC, she mentioned her age as 16 years and therefore, he had

taken a certificate from the school and no other certificate with

respect to the date of birth of the victim was collected by him. He

further stated that there was no birth certificate in the record of

the school on the basis of which the victim was admitted in the

school for the first time. He stated that he asked for the admission

form so as to ascertain the date of birth of the victim but the

school had provided him only the certificate showing her date of

birth. He further stated that in the Ex.P/14 i.e. certificate issued

by the Principal, there was no mention as to when the victim was

admitted in the school.

(8 of 12) [CRLA-219/2018]

Ex.P/3 is the report of medical jurist wherein it was

mentioned that on clinical examination, nothing suggested that

the victim is virgin.

Ex.P-12 is sonography report of the victim.

Ex.P-14 is the certificate issued by the Principal, Government

Secondary School, Bhojasar Chhota (Churu) wherein as per the

Scholar register, the name of the victim is mentioned at serial

No.660 and date of birth is shown as 20.09.2000.

We note that statements of the victim (PW1), her father Mal

Singh (PW2) and mother Santosh Kanwar (PW6) depicts the entire

story. The victim was having proximity and affinity with the

accused-appellant who used to regularly visit their Dhani and

since both of them were aged 18 years and 25 years respectively,

the relationship between them blossomed physically also leading

to the prosecutrix conceiving. When the fact of the victim being

pregnant was noticed by her mother and father, they counselled

their daughter but the victim was adamant to marry the accused-

appellant. Her father resorted to lodging the complaint against the

appellant in order to dissuade his daughter from continuing her

relationship with the appellant because the families hailed from

different castes. As stated in the statement of PW2 Mal Singh

just to separate his daughter from the appellant, he had filed the

present complaint against him. Even the testimony of PW2 Mal

Singh and PW4 Santosh Kanwar (father and mother of the victim)

is clear that their daughter was more than 18 years of age as on

the date of the incident. It has also come on record that the victim

pressurized her parents to solemnize her marriage with the

accused-appellant but the parents were not ready for the same.

(9 of 12) [CRLA-219/2018]

Prior to the lodging of this complaint also, she left her home out

of her own will and volition and went with the accused-appellant

who left the place for some time and went to his village, therefore,

in our opinion, the entire chronology of events clearly shows that

it is a case of voluntary and spontaneous physical relationship

between two consenting adults i.e. victim and the appellant.

As far as age of the victim is concerned, although the school

certificate (Ex.P-14) shows her date of birth to be 20.09.2000 but

in the statements of the victim (PW1), her father Mal Singh (PW2)

and mother Santosh Kanwar (PW4), it has come on record that

the victim was 20 years of age in the year 2017, therefore, on the

date of the incident, she was well above the age of 18 years.

While relying upon the school certificate (Exp.14), the trial

court referred to the principles laid down under section 35 of the

Evidence Act and raised a presumption regarding genuineness of

the official document produced by the prosecution. However, we

feel that approach of the trial court was not appropriate in view of

the fact that a complete mechanism for determination of age of

juvenile has now been provided under section 94 of the Juvenile

Justice Act (Care and Protection of Children) Act, 2015. Section

94 ibid is reproduced as under :-

“94. 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.

(10 of 12) [CRLA-219/2018]

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.”

As per clause 2 (i) of the Act of 2015, the date of birth

certificate issued from the school is a governing factor for deciding

the age of juvenile. However, considering in light of various

pronouncements of Hon’ble Supreme Court including the

observations made in the case of Birad Mal Singhvi V/s Anand

Purohit reported in AIR 1988 Supreme Court, 1796, it is manifest

that for satisfying the court regarding genuineness of the school

certificate (ExP.14) (in view of the fact that the father of the victim

has himself gave evasive reply regarding the exact date of birth of
(11 of 12) [CRLA-219/2018]

the girl as recorded in the school certificate), the prosecution was

required to produce on record and prove the date of birth of the

prosecutrix as recorded in the concerned school at the time of her

initial admission in the school.

The Hon’ble Supreme Court in the case of Birad Mal Singhvi

(supra) has held as under:-

“15. The High Court held that in view of the entries
contained in the Exs. 8, 9, 10, 11 and 12 proved by
Anantram Sharma PW 3 and Kailash Chandra Taparia PW
5, the date of birth of Hukmichand and Suraj Prakash
Joshi was proved and on the assumption it held that the
two candidates had attained more than 25 years of age
on the date of their nomination. In our opinion the High
Court committed serious error. Section 35 of the Indian
Evidence Act lays down that entry in any public, official
book, register, record stating a fact in issue or relevant
fact and made by a public servant in the discharge of his
official duty specially enjoined by the law of the country
is itself the relevant fact. To render a document
admissible under Section 35, three conditions must be
satisfied, firstly, entry that is relied on must be one in a
public or other official book, register or record, secondly,
it must be an entry stating a fact in issue or relevant
fact; and thirdly, it must be made by a public servant in
discharge of his official duty, or any other person in
performance of a duty specially enjoined by law. An
entry relating to date of birth made in the school register
is relevant and admissible under Section 35 of the Act
but the entry regarding to the age of a person in a
school register is of not much evidentiary value to
prove the age of the person in the absence of the
material on which the age was recorded. In Raja
Janaki Nath Roy Ors. v. Jyotish Chandra Acharya
Chowdhury, AIR 1941 CAL. 41 a Division Bench of the
Calcutta High Court discarded the entry in school register
about the age of a party to the suit on the ground that
there was no evidence to show on what material the
entry in the register about the age of the plaintiff was
made. The principle so laid down has been accepted by
almost all the High Courts in the country, see Jagan Nath
v. Moti Ram, AIR 1951 Punjab 377, Sakhi Ram v.
Presiding Officer, Labour Court, North Bihar, Muzzafarpur,
AIR 1966 Patna 459; Ghanchi Vora Samsuddish Isabhai
v. State of Gujarat, AIR 1970 Guj 178 and Radha Kishan
Tickoo v. Bhushan Lal Tickoo, AIR 1971 J K 62. In
addition to these decisions the High Courts of Allahabad,
Bombay, Madras have considered the question of
probative value of an entry regarding the date of birth
made in the scholar’s register or in school certificate in
(12 of 12) [CRLA-219/2018]

election cases. The Courts have consistently held that
the date of birth mentioned in the scholar’s register of
secondary school certificate has no probative value
unless either the parents are examined or the person on
whose information the entry may have been made, is
examined, see Jagdamba prasad v. Sri Jagannath Prasad
(1969), 42 ELR 465 (All), K. Paramalali v. L.M. Alangam
(1967) 31 ELR 401 (Mad), Krishna Rao Maharu Patil v.
Onkar Narayan Wagh, (1958) 14ELR 386 (Bom).”

Therefore, in the facts and circumstances of the case, we

have no reason to disbelieve the statements of the victim (PW1),

her father Mal Singh (PW2) and mother Santosh Kanwar (PW4)

that the age of the victim was more than 18 years at the time of

the incident. Therefore, it is a clear case of consensual relations

and since the victim was above the age of 18 years on the date of

the incident, the provisions of Protection of Children from Sexual

Offences Act were wrongly applied in the present case as

observed by us in the detailed discussion made above.

Resultantly, the appeal is allowed. The judgment dated

29.09.2018 passed by Special Judge, POCSO Act, Jaisalmer is

quashed and set aside. The appellant is acquitted from the

charges leveled against him and it is ordered that the appellant

shall be released from judicial custody forthwith, if not wanted in

any other case.

(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J

Anil Singh

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