High Court of Punjab and HaryanaCRA-S/351/2020allowed

Mukesh v. State Of Haryana

2024-11-069 pages

##$$ %& '&(

"#$#%&

&)*$ + , - &

%! ."&/), 0 '&(

#& ##$ #&&& ) 2* -

3 &&

3 # $& $ 5 2, 5 **2 &* 67 8

9 &2& ,

, ,

7 :$ , ;

"&& <7:=

:& "$& &* > $

"&& <:

= :$ & 5

$$/

((#%)# *%+#"

#%&#%)#

2& *#&* (&

?, $ /""

&"& &2& *#&* > *"

7: 2& *#&* - (&

?, $ /""

&"& &2& *#&* - *"

7: 2& *#&* - (&

?, $ /""

&"& &2& *#&* - *"

7: 2& *#&* (&

7: 2& *#&* / (&

7 && $$ "$$ & &&$(

$(, , #& #& , &

9, #& &>,

(& $ 2&$, / "& "$ /"& " 3"

2&, 4 & & "*

*#$, *"& #& &>, &2& 67 #& & " 4$- " " 4 /( * !/ #&

;

9, -22 & &* *#$ & & "*

&&( @ $(, &&

#& >* *( / 4$"

4@ $(, * &

&& /"& " #$ 2 $( $* &$

" , >* /

2 $$ *&$ -$4$ &&, $& &$ - - *# 2 ) 2*

22&- *, #&&& #& ##$ 4&

A& $ & inter alia $& &$ && #2 2 $( -& " - * 67 #&

B- &2 #&$*&( -2, $( * $!( " * # 4 $$ && *#$

&-&, *&$ *#&-* "- 4 * :C#& &> :C *#$ "& &#- *

" 2 - "& ."&*& - 5 +$( " & $*D *&&2

&&4& C#!

+ "!

#$ " ##& 4& 4&2 8

93 9, !2 #& "& $ $4&(

'/-&, -22 2( $ -&( * *&&2

6 &"&*&, *#$ " $ /& *#$ 9

;

chacha #& &>, *$( .$4& $$22 " " *#$$ *

A& $ 4* $& &$ - 4 && ##& -

", && /&&

'-2 "& $& $ & #& & #& 2 && , &#& /& 3"

2& * $$2

&& & #& *#

, * *#& -* #&- "$ &*

:&#$ 0-&* & &( "$, *$(, * " /& &

B> :3 -& $&, 2 "& "& 4&"

#& >* (#$, A &&, :$$ "$ :C

/" &&4& 4&"

#& &>, #& && "$,

" & >*, :C (#$ & "$ && 4 "$ A-2 & &* "& #&- "$, "/-& * 4 * #& &&

' 4&"

& $! /"$ *!2 &( /"

&# "& 4&"

#&*&( &( &* #&-

. /$$

", 4&"

* "$ && & $!2 &4$ & &*

/ 5 2 4"

'=4$ #&* P. Yuvaprakash vs. State rep. by Inspector of Police 2023 AIR SC 3525. #!2 "& 2"

-& ." $$/2 4&-

"12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:

"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.

(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 5 (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."

13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section of the JJ Act.

The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:

"(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;

14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997.

Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW51. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW53, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section (2)(i) as it was a mere transfer certificate, Ex C51 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence."

*#" $ &2& #$ ) 2* && - ."

Terry Saroya vs. State of Punjab and another 2023 (4) R.C.R. (Criminal) 176.

;

:&$(, '=4$ #&* $ /"

&* 2 &* "$ && Birad Mal Singhvi vs. Anand Purohit, (1988) Supp SCC 604, /"& 4&- 4&"

&2& "$ / $ "- ( -&( -$ /" *( #& *!2 &( & #& /"

/ 2- 4&"

"14. ...The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value."

-/ 4-, - *&( &* #&-

", #& *#

@ $(, #& 4$"

4( &4$ 4, /""

$ *#$"

"& *

B> : " ! &* /"& " &# "&

'/-&, "& &>* :C, " "( / "2&"

" -& 2 *&&2 &

& 22 "( " - "& .&"*& - 5 ", :"! $

'/-&, 4@ $(, " # " #& &D 2 *&&2 &

#& $ *&&2 &

* 4& < = :&$(, * $& & #& &>, /" $&( *&& "$ /$!

C#!

+ "!, * " *( " *&&

' #$ " #& "& &#- "& &, #2 "* *)&

"& & 4& # "& * <= /$$

'/-&, C #!

0 + "!

#"2&#"

B> , /" > "& " *4 *#& #"# "& &#- "& &

& $(, 2 "& * <= #"#( "& "& &

&-&, ##&" 93 9 !2 #& &* *$( **4& "( " 2 *&& "& /"

:&$(, # $ #&&(2 "&$

7 - #& & "& & "& & /"& 4 #$ & "& *

6 &"&, *$(,

:C " $ /"

"& / & " " #&* #&&* *&&2 /"

#& $ && "/ #$ #&&* *&&2

9, -&( > ( $$2 4

", $2 & !## ##$$, , " / & /"

"* "& / -$

"& *"& " $$2 .$4&, "& $

chacha, " &# &$&

'/-&, "( * * #$ ( # /"$ *-2 ##$ 2 " " &

"& *( :C, 2&$$( * .$4& - "* &2 $&$( "& ** "- $(, 5

& $(, " * * "& *

4@ $(, ##$ *- 3 &

*#$ .$4& $ * - &&

3 $& &$

C"$ & $/ - > $ $ * $$( 4 *( #& &>, "/-&, * *#& &$2 /

/ 5 2 4"

'=4$ #&* Krishan Kumar Malik vs. State of Haryana 2011(3) R.C.R(Criminal) 539, #!2 "& 2"

5 #!

%&*, * $$/2 4&-

"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (Criminal Procedure Code), FIR and deposition in Court."

6 &"&, / 5 2 4"

'=4$ #&* Rai Sandeep @ Deepu vs. State of NCT of Delhi (2012) 8 SCC 21, #!2 "& 2"

5 6!!& "** 74&"* +$ $$, # $$/

"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness.

The witness should be in a position to withstand the cross5examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co5relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness.

2 to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." / 5 2 4"

'=4$ #&* Tameezuddin @ Tammu vs. State of (NCT) of Delhi (2009) 15 SCC 566 "$ $$/

"7. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.

-/ 4-, #& $ #&- 4( &4$ 4

&2$(, #& ##$ $$/ @ "&2 &* "*

:2 *$$ ##$ , (, "$$ #

/!!

C""& #!2?& E?8 C""& &#&4$ E?8