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SIKKIM HIGH COURT
Meenakshi Madan Rai, ACJ. and Bhaskar Raj Pradhan, J.
Mangala Mishra @ Dawa
Tamang @ Jack —Appellant
versus
State of Sikkim —Respondent
Crl.A.No.36 of 2017
Decided on 13.10.2018
Held: The term “First Information” has not been defined in the Code nor is there any mention of such a term however it is now a settled position that information given to a police officer concerning an offence means something in the nature of a complaint or accusation. It may well be information of a crime which sets the criminal law justice system in motion. The provisions of section 154 of the Cr.P.C., 1973 are mandatory and the concerned Police Officer is duty bound to register the case on the basis of information disclosing cognizable offence, this was held in Ramesh Kumari v. State (N.C.T. of Delhi) and Others, AIR 2006 SC 1322. Thus, the condition which is sine qua non for recording a First Information Report is that, there must be information, which must disclose a cognizable offence before the Officer-in-Charge of the Police Station. Upon receipt of such information, the law requires the police officer to reduce the information in writing if given orally which shall be read over to the informant. Where such information is a written complaint or one which has been reduced to writing it shall be signed by the person giving the information. The substance of the information is to be entered in a book to be kept by such Officer in terms of the rules prescribed by the Government. The Section also requires that a copy of the information so recorded under Sub-Section (1) shall be given free of cost to the informant. It is thus incumbent upon the Officer at the Police Station to record a Complaint when a cognizable offence is reported and treat it as an FIR. This discussion puts into place the requirements of section 154 of the Cr.P.C., 1973.
There cannot be two FIRs for the same offence. Although two FIRs have not been exhibited herein the evidence on record indeed leads one to such conclusion. The Missing Report is actually the FIR being prior in time to Exhibit 8 which in sum and substance is a report of steps taken by P.W.9 pursuant to the Missing Report. Exhibit 8 surely does not classify as an FIR. The matter being riddled with anomalies, lacking clarity about the lodging of an FIR is therefore untenable in the eyes of law.
Hence, if in the first instance the date of birth from the school or Matriculation Certificate of the child is unavailable then resort can be taken to a Birth Certificate given by a Corporation or a Municipal authority. It is only thereafter that the Prosecution can rely on the Ossification Test. As Exhibit 7 the Birth Certificate is of no assistance to the Prosecution and the Victim being a student of Class 7 did not possess a Matriculation Certificate the Ossification Test of the child could have been conducted. The provisions of the Section have not been complied with hence the Prosecution has failed to establish the first requirement of the case under POCSO Act, viz.; to establish that the Victim was below the age of 18 years as is the requisite provided under Section 2(d) of the POCSO Act. Thus, it is but apposite for this Court to reject Exhibit 7 as proof of age of the Victim which thereby remains unproved.
In the case of the Appellant there is no evidence whatsoever at hand to gauge his age. Once a claim of juvenility or a doubt arose that the Appellant was a juvenile, the correct procedure to be adopted was the one detailed in Section 94 of the Juvenile Justice Act. P.W.7 under cross-examination has revealed that the Police seized the Voter I.D. Card of the Appellant, Exhibit 24 substantiates this evidence. No reason obtains as to why it was eschewed as evidence. In the absence of conclusion proof of the age of the Appellant we lean in favour of the accused being a juvenile.
No proof of the age of the Victim or the Appellant exists the Victim has admitted that she eloped with the Appellant of her own free will and consented to sexual intercourse. P.W.3 has stated that he saw the alleged Victim at the work site of the Appellant proving that she was there voluntarily. P.W.4 the Victim’s brother had also seen the Victim talking to the Appellant behind a Masjid on account of which he gave her a beating at home. The Appellant in such circumstances cannot be saddled with the offence of penetrative sexual assault on the alleged Victim. (Paras 10, 14, 22, 29 and 30)
Result: Appeal allowed.
JUDGMENT
Meenakshi Madan Rai, Actg. C.J.—The Learned Special Judge, Protection of Children from Sexual Offences (POCSO) Act, 2012, East Sikkim, at Gangtok, convicted the Appellant under Section 5(l) punishable under section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short the “POCSO Act”), vide its impugned Judgment dated 19-09-2017. The impugned Order on Sentence dated 20-09-2017 sentenced the Appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of L 2,000/- (Rupees two thousand) only, for the offence aforestated, with a default clause of imprisonment.
2. Aggrieved, the Appellant is before this Court, inter alia, on grounds that the seizure of Exhibit 7 the Birth Certificate of the Victim, remained unproved, the date of birth of the Victim has not been established as the contents of Exhibit 7 were not proved by any witness of the Prosecution. That, it is now settled law as to how the age of a Victim is to be assessed and none of the parameters as laid down in Mahadeo s/o Kerba Maske v. State of Maharashtra and Another, (2013) 14 SCC 637 have been complied with although witnesses being P.W.7, P.W.8 and P.W.9 were examined with regard to the Birth Certificate. P.W.2, the mother of the Victim, from whose possession the Birth Certificate was allegedly seized has made no mention of such seizure neither has she testified about the age of the Victim to establish that she was a minor. The Register containing the entry, if at all, of the date of birth of the Victim was not furnished before the Learned Trial Court. That apart, it is also evident from Exhibit 8 the FIR, that the father of the Victim had in fact lodged a Complaint on 25-05-2016 (May 2016) informing the Police that his daughter, the Victim, aged 15, was missing since 24-04-2016 (April 2016) at 2.30 p.m. which, however, was not reduced in writing but merely entered as a Diary Report and the case taken up as one under “Missing Children” being Case No.17/2016 dated 25-05-2016. The Learned Trial Court failed to appreciate that the evidence furnished before it did not prove that the Victim was a child as defined under Section 2(d) of the POCSO Act. That, material discrepancies have occurred in the evidence of the Prosecution, as P.W.9 ASI Tek Bahadur Chettri and P.W.15 PI Ajay Rai were not able to prove the date of lodging of the FIR and the date when the Victim was alleged to have gone missing. The section 164 Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) statement of the Victim was incorrectly considered as substantive evidence by the Learned Trial Court, while the Victim was unable to prove that her statement was recorded under the said provision. Exhibit 12 the Medical Report of the Victim and Exhibit 15 the Report of the Regional Forensic Science Laboratory (RFSL), Sikkim, have not supported the Prosecution case of penetrative sexual assault. This evidence nevertheless was relied on by the Prosecution and the embellished and uncorroborated testimony of the Victim was duly considered by the Learned Trial Court. That, reliance has been placed on the statements of P.W.9 and P.W.16 who are both Investigating Officers (I.O.) which is impermissible. That, the Learned Trial Court failed to consider the claim of juvenility raised by the Appellant before the Court and erred in ignoring the principles laid down by section 114(g) of the Indian Evidence Act, 1872 (for short the “Evidence Act”), when material witnesses and evidence were not produced by the Prosecution such as the father of the Victim and the FIR lodged by him. Hence, in view of the aforesaid circumstances the impugned Judgment and Order on Sentence deserves to be set aside and the Appellant acquitted of the Charges.
3. Resisting the stand of learned Counsel for the Appellant, learned Assistant Public Prosecutor would contend that the Prosecution has without doubt proved the age of the Victim as Exhibit 7, the Birth Certificate of the Victim, being an
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