Madhya Pradesh High Court
Sushil Kumar Sahu vs The State Of Madhya Pradesh on 17 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 CRA-928-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 928 of 2022
(SUSHIL KUMAR SAHU Vs THE STATE OF MADHYA PRADESH )
Dated : 17-01-2025
Shri Siddharth Datt - learned Advocate for the appellant.
Shri Akshay Namdeo - learned Government Advocate for
respondent/State.
Shri Awadhesh Mishra – learned Advocate for the objector.
Considered I.A.No.10187/2024, which is fourth application for
suspension of sentence and grant of bail on behalf of appellant/applicant-
Sushil Kumar Sahu. Earlier two applications, namely, I.A.No.1534/2022 &
I.A.No.8413/2022 were dismissed as withdrawn on 16.6.2022 & 05.8.2022
and third one being I.A.No.2480/2023 has been dismissed on merit vide
order dated 03.5.2023.
2. Vide impugned judgment dated 10.12.2021 the Special Judge
(POCSO), Rewa in Special Sessions Case No.195/2020 convicted the
appellant for offences under sections 354, 354A, 376(2)(f), 376(2)(n), 376(3)
of IPC and 5/6 of POCSO Act, 2012 sentenced to undergo R.I. for 03 years,
01 years, 21 years, 25 years, 25 years & 25 years with fine of Rs.2000/-,
Rs.500/-, Rs.4000/-, Rs.4000/-, Rs.5000/- and Rs.5000/- respectively with
default stipulations.
3. In short, the prosecution case is that the minor prosecutrix (P.W.1)
had lodged a report against the appellant, who is an uncle of the prosecutrix
in relation. As per the F.I.R. dated 5.11.2020 (Exhibit-P/2) for the last two
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years, the appellant/accused started obscene and vulgar talks with the
prosecutrix and when she refused his advances the accused said that he
would commit suicide, which frightened the prosecutrix. In the year 2018,
somewhere in the month of June, the prosecutrix started living in Rewa
district. There the appellant, by threatening and blackmailing the prosecutrix
committed the act of rape on the prosecutrix many times at intervals.
4. After the report was lodged, police conducted investigation and
filed charge-sheet. The accused denied the charges and the trial was
conducted which ultimately resulted into the judgment of conviction dated
10.12.2021.
5. Learned counsel for the appellant submitted that appellant is
innocent and has been falsely implicated in the crime in question. The
prosecution has miserably failed to bring on record any reliable legal
evidence. It is further submitted that prosecutrix was consenting party. There
was enmity regarding some money matter. The trial Court has failed
to appreciate minutely the evidence of P.W.1 i.e. the prosecutrix. He has
also placed reliance on the D.N.A. report which was negative. Thus, learned
trial court has not properly appreciated the oral and documentary evidenced
on record. The transfer certificate of school cannot be relied upon while
considering the age of the proseutrix. The appellant has remain in custody for
about 05 years. Final disposal of this appeal would take considerable time.
Learned counsel has placed reliance on the the cases of Mohd.Ali Vs. State
of U.P., (2015) 7 SCC 272, Dilip and another Vs. State of MP, (2001) 9 SCC
452 and P.Yuvaprakash Vs. State Rep. by Inspector of Police , 2023 LiveLaw
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SC 538. Hence, prayer has been made to suspend the remaining jail sentence
of the appellant/applicant.
6. Learned Government Advocate as well as the counsel for the
objector have strongly opposed the prayer for suspension of sentence and
claimed dismissal of instant application for suspension of sentence.
7. Considered arguments of the learned counsel for the parties and
perused the record of the case. Prosecutrix (PW.1) has stated that incident
happened between 2018 till 05.11.2020 for about 6-7 times. The appellant
committed the said act in one restaurant and in her house. At the time of
incident she was aged about 14 years. She knew the accused from her
childhood as he was like an uncle in her relation. She also deposed that
accused said that if she will not cooperate in having physical relation then he
will commit suicide. DNA report (Exhibit-C/1) is inconclusive as from
Articles-A & B uninterpretable Y chromosome STR Low Male DNA profile
has been received. Regarding age documentary proof perused Exhibit-P/13
(Scholar Register) & P/14 (Transfer Certificate) as also the statement of
Nilesh Kumar Dubey (PW.9) who was Incharge Principal of Maharani Laxmi
Bai High School. This witness has stated in paragraph 1 of his examination-
in-chief that prosecutrix took admission in his school in Class-III on the
basis of transfer certificate from school where she was earlier studying i.e.
Saraswati Gyan Mandir, Manikwar in Class-I & IInd wherein her age is
mentioned as 10.7.2010.
8. Learned counsel for the applicant placed reliance on judgment of
the Hon’ble Apex Court in P.Yuvaprakash (supra), the relevant paragraphs of
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which are as under:-
“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., CW-1. 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, DW-3, theSignature Not Verified
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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 94(2)(i) as it was a
mere transfer certificate, Ex C-1 could not have been
relied upon to hold that M was below 18 years at the
time of commission of the offence.
xxxxx xxxxxx
18. Reverting to the facts of this case, the
headmaster of M’s School, CW- 1, was summoned by
the court and produced a Transfer Certificate (Ex.C-1).
This witness produced a Transfer Certificate Register
containing M’s name. He deposed that she had studied
in the school for one year, i.e., 2009-10 and that the date
of birth was based on the basis of the record sheet given
by the school where she studied in the 7th standard.
DW-2 TMT Poongothoi, Headmaster of
Chinnasoalipalayam Panchayat School, answered the
summons [2012] 9 SCR 224 served by the court and
deposed that ‘M’ had joined her school with effect from
03.04.2002 and that her date of birth was recorded as
11.07.1997. She admitted that though the date of birth
was based on the birth certificate, it would normally be
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recorded on the basis of horoscope. She conceded to no
knowledge about the basis on which the document
pertaining to the date of birth was recorded. It is stated
earlier on the same issue, i.e., the date of birth, Thiru
Prakasam, DW-3 stated that the birth register pertaining
to the year 1997 was not available in the record room of
his office.
19. It is clear from the above narrative that none
of the documents produced during the trial answered the
description of “the date of birth certificate from the
school” or “the matriculation or equivalent certificate”
from the concerned examination board or certificate by
a corporation, municipal authority or a Panchayat. In
these circumstances, it was incumbent for the
prosecution to prove through acceptable medical
tests/examination that the victim’s age was below 18
years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr.
Thenmozhi, Chief Civil Doctor and Radiologist at the
General Hospital at Vellore, produced the X-ray reports
and deposed that in terms of the examination of M, a
certificate was issued stating “that the age of the said
girl would be more than 18 years and less than 20
years”. In the cross-examination, she admitted that M’s
age could be taken as 19 years. However, the HighSignature Not Verified
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Court rejected this evidence, saying that “when the
precise date of birth is available from out of the school
records, the approximate age estimated by the medical
expert cannot be the determining factor”. This finding
is, in this court’s considered view, incorrect and
erroneous. As held earlier, the documents produced, i.e.,
a transfer certificate and extracts of the admission
register, are not what Section 94 (2) (i) mandates; nor
are they in accord with Section 94 (2) (ii) because DW-
1 clearly deposed that there were no records relating to
the birth of the victim, M. In these circumstances, the
only piece of evidence, accorded with Section 94 of the
JJ Act was the medical ossification test, based on
several X-Rays of the victim, and on the basis of which
PW-9 made her statement. She explained the details
regarding examination of the victim’s bones, stage of
their development and opined that she was between 18-
20 years; in cross-examination she said that the age
might be 19 years. Given all these circumstances, this
court is of the opinion that the result of the ossification
or bone test was the most authentic evidence,
corroborated by the examining doctor, PW-9.”
Thus, in the light of above decision the documentary proof of age of
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prosecutrix in the instant case cannot be termed as proved as per section 94
of the Juvenile Justice (Care and Protection of Children) Act, 2015 and
POCSO Act, 2012.
9. Hence there is doubt about age determination of the prosecutrix.
The DNA report is negative. The father of the prosecutrix, namely, PW-2 in
paragraph 09 has stated that he has two sons and three daughters. The
prosecutrix is his second girl child. He does not remember in which year and
where he got admitted the prosecutrix in Class-I. He also stated in same
paragraph that at the time of admission in school he had not given any
document. At the time of admission in school the age of the prosecutrix was
3-4 years. Dr.Nitu Dwivedi (PW.4) has stated that she examined the
prosecutrix and there was no mark of injury on the internal part of her body
or sign of recent intercourse.
10. Considering the over all facts and circumstances of the case;
period of custody inasmuch as appellant remained in custody for about more
than 05 years and 02 months inasmuch as as per custody report dated
29.6.2023 of Superintendent of Jail, Central Jail, Rewa he remained in
custody for 03 years 07 months and 22 days, and taking into account that
final disposal of this appeal would take considerable time and without finally
commenting on merits of the case, prima facie this Court is of the view that
sentence of the appellant can be suspended. Accordingly, I.A.No.10187/2024
is allowed.
11. It is directed that that subject to depositing fine amount, if not
already deposited and on furnishing a personal bond in the sum of
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Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the
like amount to the satisfaction of the trial Court, the remaining part of the
substantive jail sentence imposed upon appellant/Applicant (Sushil Kumar
Sahu) shall remain suspended during the pendency of this case and he shall
be released on bail. Appellant shall appear before the concerned trial Court
on 25.03.2025 and on all such subsequent dates, as may be fixed by the trial
Court in this regard during the pendency of this appeal.
12. List for final hearing in due course.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
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MAMTANI
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