Gurpal Singh Ahluwalia, J.

1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 16/5/2017 passed by Special Additional Sessions Judge, Chachauda, District Guna in Special Sessions Trial No. 73/2014, by which the appellants have been convicted and sentenced as under:-

Appellant No. 1 Jagdish Singh:

Section

Act

Imprisonment

Detail of fine/if deposited

Imprisonment in lieu of fine

363/34

IPC

03 Years RI

1000/-

1 Year RI

366/34

IPC

05 Years RI

1000/-

1 Year RI

376(1)(N)

IPC

10 Years RI

2000/-

02 Years RI

6 r/w 5(L)

POCSO Act

10 Years RI

2000/-

02 Years RI

Appellant No. 2 Bhanwarlal:

Section

Act

Imprisonment

Detail of fine/if deposited

Imprisonment in lieu of fine

363/34

IPC

3 Years RI

1000/-

1 Year RI

366/34

IPC

5 Years RI

1000/-

1 Year RI

2. The necessary facts for disposal of the present appeal in short are that on 14/5/2014, the complainant lodged a Guminsaan report that his daughter aged about 17 years had left the house on the pretext of going to forest, but has not returned back and accordingly, the Guminsaan report No. 22/2014 was registered. During the Guminsaan enquiry, statements of parents of the prosecutrix were recorded, who expressed their suspicion on the appellant no. 1. The prosecutrix was recovered. The FIR in Crime No. 214/2014 was registered. Spot map was prepared. The statements of the witnesses were recorded and after arresting the accused persons, the police filed the charge-sheet for offence under Sections 363, 366, 376 of IPC.

3. The Trial Court by order dated 19/9/2014 framed charges under Sections 363 or in the alternative 363/34 and 366 or in the alternative 366/34 of IPC against the appellant no. 2-Bhanwarlal, whereas framed charges under Sections 363 or in the alternative 363/34, 366 or in the alternative 366/34, 376(2)(n) of IPC as well as Section 6 read with Section 5(L) of POCSO Act, 2012 against appellant no. 1-Jagdish Singh.

4. The appellants abjured their guilt and pleaded not guilty.

5. The prosecution in order to prove its case examined Dr. Abha Sharma (PW-1), Prosecutrix (PW-2), "A" (PW-3) father of the prosecutrix, "B" (PW-4) mother of the prosecutrix and Livon Minj (PW-5).

6. The appellants did not examine any witness in their defence.

7. The Trial Court by impugned judgment has convicted and sentenced the appellants for the offences mentioned above.

8. Challenging the conviction recorded by the Court below, it is submitted by the counsel for the appellants that the prosecution has failed to prove that the prosecutrix was minor below the age of 18 years. In her statement recorded under Section 161 of CrPC, she had specifically stated that she had gone along with the appellant no. 1, therefore, she was a consenting party. Even otherwise, she had disclosed to the doctor that she had voluntary physical relationship with the appellant no. 1.

9. Per contra, the counsel for the State has supported the findings recorded by the Trial Court.

10. Heard the learned counsel for the parties.

11. So far as the age of the prosecutrix is concerned, the Trial Court has relied upon the evidence of the father and mother of the prosecutrix, i.e. "A" (PW-3) and "B" (PW-4). The prosecution has not proved the date of birth of the prosecutrix by examining the school Head Master/teacher. Even the ossification test was not conducted.

12. By referring to paragraph 4 of the cross-examination of "A" (PW-3), it is submitted by the counsel for the appellants that although "A" (PW-3) had disclosed that the age of his eldest son is 25 years, but was not in a position to disclose the age of his remaining children. It was the evidence of "A" (PW-3) that he has 5 children and the prosecutrix is the youngest one. It is submitted that the Trial Court has wrongly held that even if the gap of two years is considered between two children of "A" (PW-3), then if the age of his eldest son is 25 years, then the prosecutrix was undisputedly minor. It is submitted that there is no scientific reason for drawing such an inference of gap of two years between two children.

13. Considered the submissions made by the counsel for the appellants.

14. It is really surprising that the prosecution had initially relied upon the school record of the prosecutrix, according to which, date of birth of the prosecutrix was 02/04/1997 and the prosecutrix went missing on 14/05/2014. On 19/09/2014 the APO, namely, Shri S.B. Soni filed the trial programme requesting the Trial Court to summon only five witnesses, i.e., Dr. Abha Sharma (PW-1), Prosecutrix, "A" (PW-3) father of the prosecutrix, "B" (PW-4) mother of the prosecutrix and ASI Livon Minj (PW-5). Even in the list of documents annexed with the charge-sheet, no school Head Master/teacher was cited as a witness. Why the Investigating Officer and the APO did not think it proper to get the school record proved, specifically when the Investigating Officer had himself filed a photocopy of the progress report of the prosecutrix of Class-VIII Further, the Trial Court is not expected to act as a Post Office. When the prosecution itself had filed a copy of the school record of the prosecutrix to show that her date of birth is 02/04/1997, then the Trial Court could have exercised its power under Section 311 of CrPC and could have called the Head Master/teacher of the concerning school to prove the date of birth of the prosecutrix. According to father of the prosecutrix, "A" (PW-3), the age of his eldest son was 25 years and the prosecutrix was his youngest daughter. When the documents as mentioned in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 were available to establish the date of birth of a juvenile victim, then the Trial Court was not required to consider the oral evidence of the father of the prosecutrix "A" (PW-3) with regard to the age of the prosecutrix. The evidence, other than that mentioned in the Rules, should have been taken into consideration, only after if Trial Court comes to a conclusion that the documentary evidence led by the prosecution is not reliable. Further, the Court must exercise its discretionary power to find out the truth. If prosecution committed a mistake by not citing the head master/teacher of the School, to prove the School record, then the Trial Court was not helpless and should have stepped into the matter by exercising its power under Section 311 of Cr.P.C. The Supreme Court in the case of Natasha Singh v. CBI, reported in (2013) 5 SCC 741 [LQ/SC/2013/556] has held as under:

8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

* * * *

15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardised. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. [Vide Talab Haji Hussain v. Madhukar Purshottam Mondka, Zahira Habibulla H. Sheikh v. State of Gujarat, Zahira Habibullah Sheikh (5) v. State of Gujarat, Kalyani Baskar v. M.S. Sampoornam, Vijay Kumar v. State of U.P. and Sudevanand v. State.]

The Supreme Court in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat, reported in (2006) 3 SCC 374 [LQ/SC/2006/208] has held as under:

26. In this context, reference may be made to Section 311 of the Criminal Procedure Code which reads as follows:

"311. Power to summon material witness, or examine person present.--Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.

27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.

28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short "the Evidence Act") are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.

29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra. Under these circumstances, this Court is of the considered opinion that the Trial Court committed a material illegality by ignoring the fact that the prosecution itself had relied upon the photocopy of the progress report of the prosecutrix which shows that the date of birth of the prosecutrix is 2/4/1997 and even if the Investigating Officer or the Public Prosecutor had decided not to examine any school teacher to produce the original progress report as well as school record to prove the date of birth of the prosecutrix, then the Court below could have examine the school teacher as a court witness.

15. Under these circumstances, this Court is of the considered opinion that a material illegality has been committed by the Trial Court by ignoring the important aspect of the matter.

16. Accordingly, the judgment and sentence dated 16/05/2017 passed by the Special Additional Sessions Judge, Chachauda, District Guna in Special Sessions Trial No. 73/2014 is hereby set aside. The matter is remanded back to the Trial Court to examine the school teacher/Headmaster to prove the school record. If the Trial Court comes to a conclusion that the School Record conclusively proves the age of the prosecutrix, then it can consider the evidence of the father of the prosecutrix as corroborative piece of evidence, and if the Trial Court comes to a conclusion that the prosecution has failed to prove the date of birth of the prosecutrix, then can consider the evidence of the father of the prosecutrix to adjudicate the age of the prosecutrix by applying the principle of "Back to Back". The Trial Court is directed to give a fresh finding on the age of the prosecutrix after examining the necessary witnesses in this regard.

17. The Trial Court is directed to pronounce fresh judgment after recording the evidence of the school teacher/Headmaster with regard to the date of birth of the prosecutrix.

18. Let the entire exercise be concluded within a period of six months from the date of receipt of record of the Trial Court.

19. The appellant no. 2 is on bail. His bail bonds are discharged.

20. It is submitted by the counsel for the appellants that the appellant no. 2 was on bail on the day when the judgment was delivered by the Trial Court.

21. Accordingly, it is directed that appellant no. 2 shall remain present before the Trial Court on 03/01/2022.

22. Registry is directed to send the record of the Trial Court as early as possible so that it must reach the Trial Court prior to 03/01/2022. In case if the appellant no. 2 fails to appear before the Trial Court on 03/01/2022, then the bail bonds of the appellant no. 2 executed by him during trial shall automatically stand cancelled and the Trial Court shall issue warrant of arrest against the appellant no. 2.

23. So far as the appellant no. 1 is concerned, since he was not granted bail by this Court, therefore, he shall remain in custody till the judgment is pronounced by the Trial Court.

24. Let a copy of this order be provided to the appellant no. 1 free of cost.

25. Record of the Trial Court be immediately sent back along with the copy of judgment for necessary information and compliance.

26. The appeal is disposed of in the above-mentioned terms and conditions.