State v. Santosh Yadav

1. This hearing has been done through hybrid mode.

2. The present leave petition has been filed on behalf of the State under Section 378(1) of the Cr.P.C. seeking leave to appeal against the judgment dated 6th July, 2020 passed by the Ld. ASJ-01 (West) Special Court (POCSO), Tis Hazari Courts in Sessions Case No. 497/2017 arising out of FIR NO. 127/2016 registered at P.S. Patel Nagar for the offences under Sections 363, 376 of the IPC and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. Vide the impugned judgment the Trial Court acquitted the Accused-Santosh Yadav.

3. Brief facts of the case are that the father of the Survivor, Ms. ‘X’ had filed a complaint stating that on 3rd February, 2016, his daughter had left home for school at 7:00 a.m. in the morning, in her school uniform, but did 18:39 not return. The daughter of the complainant is stated to be studying in the 11th Grade in Nigam Pratibha Vidyalaya, Baljeet Nagar, Delhi and her school usually got over around 2:00 p.m.

4. A missing complaint was reported and an FIR No. 127/2016 was registered at P.S. Patel Nagar on 4th February, 2016 under Section 363 of IPC.

5. It is further stated that on 12th February, 2017 the parents of the survivor visited the police station Patel Nagar and informed that the survivor had returned to the Petitioner’s house on 29th September, 2016.

6. The statement of the survivor, Ms. ‘X’ was then recorded by the Police and she had informed the Police that she had accompanied the Respondent to Ajamgarh, U.P. and after that they went to Ludhiana, Punjab. She further stated that she had physical relations with the Respondent out of her own will. A chargesheet was then filed on 5th April, 2018 under Section 363, 366 of the IPC and Section 6 of the POCSO, Act, 2012. The allegation in the chargesheet is that the Respondent-Santosh Yadav had taken away the survivor, Ms. ‘X’.

7. The prosecution has examined six witnesses out of which PW-1 was the survivor herself, PW-2, (Mother of the survivor), PW-3 (Father of the Survivor). PW-6 (Mukesh Chand Meena) was the teacher from the school who produced the school record to confirm the date of birth of the survivor. The Trial Court recorded that, though the survivor had stated that her date of birth is 7th September, 1999, there was no evidence in support to confirm the same.

8. The Trial Court came to the conclusion that even from a perusal of the school records there was no basis for the survivor’s date of birth to the school i.e. 7th September, 1999. The judgment records as under: 18:39 “30. Hence, in these circumstances, the school certificate and the documents placed on record have to be considered by the court and it has to be seen whether the prosecution has been able to prove the date of birth of Ms. 'X' from the said documents or not. During investigation, IO has collected the copy of application form submitted by father of Ms. 'X', along with declaration and affidavit given by the father of Ms. 'X' at the time of her admission in the school, admission and withdrawal register and age certificate, issued by Principal of Nigam Pratibha Vidyalay, Baljeet Nagar, West(Morning Shift), Delhi. As per the school record and the documents placed on record, the date of birth of Ms. 'X' is mentioned in the school record on the basis of affidavit given by father of Ms. 'X'. The said affidavit is also placed on record, photocopy of which is Mark Z. Perusal of the record shows that no date of verification is mentioned on this affidavit neither the same has been signed by the deponent. Further, father of Ms. 'X' is examined in the court but the said affidavit was not put to him for the purpose of identification. Mere photocopy will not prove the document. The document has to be proved by the author of the said document, specifically when the said person was examined in the court. Not only this, in fact, father of Ms. 'X', who has been examined as PW[3] in the court, has stated that mother of Ms. 'X' is aware about everything and he has not mentioned the date of birth in the school of Ms. 'X'. PW[2] is the mother of Ms. 'X'. She has deposed that she got Ms. 'X' admitted in the school and it is on the basis of her affidavit, that her date of birth is mentioned in the school record. As per testimony of PW[2], she has given her affidavit and copy of ration card in the school on the basis of which, date of birth was recorded in the school record. The said deposition is completely contrary to the school record where date of birth is recorded on the basis of affidavit given by father of Ms. 'X'. PW[2] has stated that she can bring the documents on the basis of 18:39 which date of birth of Ms. 'X' was mentioned. PW[2] was given time to produce the same and her examination in chief was adjourned on 24.01.2019. Thereafter on 13.02.2019, PW[2] stated that she has no such document with her. Despite giving opportunity, PW[2] could not produce the documents. She did not give any reason for not producing the same, Hence, an adverse inference has to be drawn for the same. xxxx

34. In the present case, the school record produced by the prosecution is an admissible piece of evidence. However, it has to be seen whether the same has been produced by the prosecution as per the law or not. In view of the above cited judgments, it is clear that the record of the school documents can be proved by examining the parent of the victim who has mentioned the date of birth in the school record. In the present case, as per the documents, father of Ms. 'X' has given an affidavit regarding date of birth of Ms. 'X' whereas in the court, P W 3 has denied having any such knowledge about Ms. 'X'. As per the case of the prosecution, it is PW 2 i.e mother of Ms. 'X' who has given an affidavit in the school regarding date of birth of Ms. 'X'. The said affidavit has not been produced and as per PW[6], there is no such affidavit in the school. Hence, in these circumstances, the documents placed on record regarding the age proof of Ms. 'X' cannot be considered by this court.

35. It is a settled principle of law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Reference in this regard be made to the judgment of State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. Vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 18:39 11 SCC 242. xxx

38. In the present case, the case of the prosecution is based solely on the testimony of the victim and her family members examined as prosecution witnesses. As already discussed above, the testimony of these prosecution witnesses shows that Ms. 'X' left her home out of her own will, accompanied the accused also out of her own will and she has specifically deposed that whenever physical relations were established, it was with her consent. Further, prosecution has failed to prove that Ms. 'X' was under the age of 18 years at the time of alleged incident. Hence, as the acts were done with the consent of Ms. 'X' and it is not proved that she was incompetent to give her valid consent, I am of the considered opinion that accused is entitled to benefit of doubt.”

9. It was held by the Trial Court that the date of birth of the survivor has not been proved and the accused was accordingly acquitted.

10. Mr. Bahri, ld. APP submits that the school teacher had been summoned who had submitted the admission and withdrawal register duly attested by him as Ex. PW-6/C and, thus, according to the Prosecution, this was sufficient to establish the date of birth of the survivor. In addition, the survivor herself has given her date of birth as 7th September, 1999 - thus, the date of birth stands duly corroborated.

11. On the other hand, Mr. Chirag Khurana, ld. Counsel appearing for the Respondent submits that PW-6, the school teacher, in his cross-examination as also the father of the survivor (PW-3) in his cross-examination are unable to prove beyond reasonable doubt as to what was the basis of the date of birth which was given to the school. In fact, in the cross-examination, it is recorded that the father did not admit the survivor in the school himself. It was stated 18:39 by the father, PW-3, that the admission of the daughter was done by PW-2, her mother. Thus, there is a clear contradiction.

12. The Court has considered the matter. The testimony of PW-6, the School Teacher would show that the said witness clearly states that the father of the survivor had given an affidavit with respect to the date of birth of the survivor. The application was also claimed to have been given by her father. The relevant portions of his testimony are set out below: “1. Mr. Lekh Raj Meena and I have been deputed by Mr. Joginder Kumar Gupta, Principal of the above mentioned school to produce the summoned record and to depose in the present case. The authority letter issued by the Principal is Ex.PW6/A bearing the signatures of Mr. Joginder Kumar Gupta at point A. I can identify his writing and signatures as I have seen him writing and signing in the ordinary course of my work.