Madhya Pradesh High Court
Devkishan vs The State Of Madhya Pradesh on 18 November, 2021
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1 CRA No.9524/2018
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Criminal Appeal No.9524/2018
Indore, Dated 08.11.2021
Shri Pradeep Kumar Lalwani, learned counsel for the
appellant.
Shri Shashwat Seth, learned Panel Lawyer for the respondent /
State of Madhya Pradesh.
The matter is heard finally, with the consent of counsel for the
parties.
Case is reserved for final judgment.
(Subodh Abhyankar)
Judge
rcp
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Criminal Appeal No.9524/2018
Indore, Dated 18.11.2021
The final judgment passed separately, signed and dated.
(Subodh Abhyankar)
Judge
rcp
2 CRA No.9524/2018
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: Hon'ble Shri Subodh Abhyankar J.
Criminal Appeal No.9524/2018
(Devkishan s/o Jivraj Gayari
Versus
The State of Madhya Pradesh
through Police Station Kukdeshwar, Tahsil Manasa, District Neemuch MP)
*****
Shri Pradeep Kumar Lalwani, learned counsel for the appellant.
Shri Shashwat Seth, learned Panel Lawyer for the respondent / State of
Madhya Pradesh.
*****
JUDGMENT
(Pronounced on this 18th day of November, 2021) This appeal has been preferred by the appellant / accused under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, the Code) against impugned judgment dated 30.11.2018 passed by learned 1st Additional Sessions Judge, Manasa, District Neemuch (MP) in Special Sessions Trial No.24/2014, whereby the learned Judge of the trial Court finding the appellant guilty for commission of offence under Section 363 and 366 of Indian Penal Code, 1860 and also under Section 5 (L) read with Section 6 of the Protection of Children from Sexual Offence Act, 2012 has sentenced to undergo two years rigorous imprisonment with fine of Rs.500/- (rupees five hundred), three years rigorous imprisonment with fine of Rs.700/- (rupees seven hundred) and ten years rigorous imprisonment with fine of Rs.800/- (rupees eight hundred) and in default of payment of fine, the appellant / accused was directed to undergo 4 months, 5 3 CRA No.9524/2018 months and 6 months additional rigorous imprisonment respectively.
02. In brief, the facts giving rise to the present appeal are that on 18.10.2013, at around 06.00 O'clock in the evening, at gram Hamakhedi, Tahsil Manasa, District Neemuch (MP), the appellant abducted the prosecutrix aged 16 years on the pretext of marriage, took her to Junapani, Neemuch and villages Idar and Hadad of State of Gujarat and in all these places, he also committed rape on her against her wishes. The First Information Report (FIR) under Section 363 of IPC was initially lodged by the father of the prosecutrix on 19.10.2013 against some unknown person but on 21.10.2013, complainant Leelaram again approached the Police Station stating that his daughter (the prosecutrix) has been abducted by the appellant Devkishan s/o Jeevrao Gayari by luring her that he would marry her.
03. The investigation ensued and subsequently, the charge sheet was also filed. The learned Judge of the trial Court, after committal of the case to him, has recorded the evidence and convicted the appellant, as aforesaid; and being aggrieved by the same, this appeal has been preferred by the appellant.
04. Counsel for the appellant has submitted that the prosecutrix, in the present case, was more than eighteen years' old at the time of incident and was a consenting party, as she has remained with the appellant for a period of around four months and during this period, 4 CRA No.9524/2018 she has also moved along with the appellant from one place to another in public transports and has never raised any objection regarding the appellant's company. Counsel has submitted that so far as the age of the prosecutrix is concerned, no cogent evidence has been brought on record by the prosecution except her mark sheet and scholar register which cannot be relied upon in the absence of any other cogent evidence.
05. Counsel has also drawn the attention of this Court to deposition of PW-9 Dr. Kiran Bansal who had examined the prosecutrix and in her para 4 of her cross examination, has clearly stated that the age of the prosecutrix appears to be between 16 to 18 years; and after the examination of the X-Ray Plates, she found her age to be more than 17 to 18 years with a margin of two years here or there. Thus, it is submitted that the prosecution has not been able to prove its case beyond reasonable doubt regarding the age of the prosecutrix to be less than eighteen years.
06. Counsel has also submitted that although the father of the prosecutrix Leelaram (PW-6) has mentioned that he got the prosecutrix admitted in the school and recorded her date of birth as 01.04.1998, but this statement in itself cannot be taken on its face value, in the absence of the relevant documents on record, especially when in para 9 of his deposition, he has clearly stated that he got married when he was four years old only and his present age is 45 5 CRA No.9524/2018 years and has also admitted that after around ten years of his marriage, the prosecutrix was born. The attention of this Court was also invited to other prosecution witnesses to submit that the age of the prosecutrix is more than eighteen years.
07. So far as the consent of the prosecutrix is concerned, it is submitted that even according to the statement of the prosecutrix (PW-1), it is apparent that she was a consenting party, which is evident from the fact that she has clearly stated that around 7 - 8 months ago, when she was coming to her house after grazing the cattle, the appellant came from behind and committed rape on her on the point of knife. Thereafter, he also took her to his house and from his house, he took her to gram Singhadia on a motorcycle to the appellant's maternal aunt wherein in the night again the appellant committed rape on her. She has also stated that thereafter in the early morning at 04.00 O'clock, the appellant took her to Warlia gaon on motorcycle and from there in a bus to Gangapur gaon of Rajasthan where she was kept in a Lodge where again the appellant committed rape on her and thereafter he took her to Palra gaon where they stayed around for twenty days at a house where again the appellant committed rape on her. She has also stated that the appellant used to lock the doors from outside and used to keep the keys with him only. From the said place Palra, the appellant also took her to Kolapur of Maharashtra where the appellant's uncle resides and in Kolapur, they 6 CRA No.9524/2018 stayed for around six days wherein also, she was subjected to rape. From Kolapur, they again went back to some village of Gujarat for a period of around one month and during this period again the appellant used to rape her. She has also stated that the appellant used to go to earn livelihood and by closing her in the room and on one day when he left, he forgot to lock the room. She went outside and called her father.
08. In her cross examination, she has been suggested that she has already been married to some Pawan of village Singhadia of Pipalia, to which, she has denied. However, she has stated that she has been engaged to Pawan. She has also been suggested that she did not like Pawan. Hence, she had gone on her own volition with the appellant. She has also been suggested that she solemnized marriage with the appellant on 06.12.2013 at Mandsaur Court.
09. In her cross examination, she has also been confronted with her earlier police statement Ex.D/1 and has been suggested that whatever she has deposed in the Court is not mentioned in her police statement Ex.D/1, to which, she has feigned ignorance. Thus, counsel has submitted that there is a clear omission on the part of the prosecutrix to adhere to her police statement Ex.D/1.
10. Counsel has also referred to Ex.P/3 which is MLC of the prosecutrix in which a brief history, as narrated by the prosecutrix has also been mentioned wherein she has informed the treating 7 CRA No.9524/2018 doctor, that she had gone with the appellant Devkishan on her own volition to Gujarat around four months back, and is having sexual intercourse with him for around last 2 - 3 years. She has also mentioned that she is married for last the last two years with some other person residing with her parents; and thus, it is submitted that on the basis of this document itself, which has been recorded by an independent Government Official, the story, as narrated by the prosecution falls flat on the ground.
11. In support of his contention, Shri Lalwani has also placed reliance upon the decision rendered by Rajasthan High Court in the case of Raju @ Rajkumar son of Shri Pramod v. State of Rajasthan in Criminal Appeal No.716/2016 dated 11.08.2017 and the decision rendered by this Court at Principal Seat Jabalpur in the case of Luvkush v. State of Madhya Pradesh in Criminal Appeal No.1361/2018 dated 22.09.2020.
12. Counsel for the respondent / State, on the other hand, has opposed the prayer and it is submitted that no case for interference is made out, as the learned Judge of the trial Court has rightly appreciated the evidence on record.
13. Heard learned counsel for the parties and perused the record.
14. From the record, this Court finds that it is an admitted fact that the prosecutrix has resided with the appellant for a period of around10 days short of four months, as the date of incident is said to 8 CRA No.9524/2018 be 18.10.2013 as mentioned in FIR Ex.P/7 and the prosecutrix was recovered on 08.02.2014. Thus, it becomes all the more necessary to scrutinize the evidence carefully to see if the prosecutrix was major at the time of incident and whether she was a consenting party, if she was a major.
15. In support of its contention that the prosecutrix was not major at the time of incident, the prosecution has proved two documents, namely, Ex.P/4 which is a scholar register and Ex.P/9 is the mark sheet wherein her date of birth is stated to be 01.04.1998. This document Ex.P/4 is proved by PW-4 Rekha Sharma, a Teacher at Primary School, Hamakhedi, who has also admitted that the date of birth is usually recorded as per the information provided by the parents of a student. She has also admitted that she cannot tell as to on the basis of which document the date of birth of the prosecutrix has been informed to the then school officials. She has also admitted that usually the date of birth is mentioned by the villagers only on their guess, as most of them are illiterate. The other document Ex.P/9 is the mark sheet of the prosecutrix, when she was in Class 6 th and is of the year 2008-09. This mark sheet has been proved by the father of the prosecutrix PW-6 Leelaram.
16. PW-6 in his cross examination has admitted that he has not given the Janma-patrika of the prosecutrix to the Police but he has stated that he remembers the date of birth of the prosecutrix, as she 9 CRA No.9524/2018 happens to be his daughter. However, in para 10 of his deposition, he has admitted that he does not remember his own mobile phone number and as already observed in the foregoing paragraphs, that in his cross examination in para 9, he has admitted that he got married, when he was four years old only and the prosecutrix was born after ten years, whereas his age at the time of deposition was 45 years. Even though the aforesaid statement appears to be rather preposterous, however, this Court also finds that the mother of the prosecutrix PW-2 Ramkanya bai in her cross examination in para 5 has admitted that she does not know as to how many years have passed after her marriage and she has also admitted that it must have been around 20 - 25 years since her marriage and after her marriage, she gave birth to two daughters and the eldest daughter, the prosecutrix was born around one to two years of her marriage, which place the age of the prosecutrix around twenty years.
17. So far as the evidentiary value of the scholar register and mark sheet is concerned, at this juncture, it would be apt to refer to the decision rendered by the Supreme Court in the case of Birad Mal Singhvi v. Anand Purohit reported in AIR 1988 SC 1796 = 1988 Supp. SCC 604, which read, as under: -
"14.......No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination papers. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi 10 CRA No.9524/2018 were recorded was produced before the High Court. No doubt, Exs. 8. 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholars' 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. Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced 11 CRA No.9524/2018 by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.
15. The High Court held that in view of the entries contained in the Exs. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmi Chand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Mali Ram, Sakhi Ram v. Presiding Officer, Ghanch i Vora Samsuddisn Isabhai v. State of Gujarat and Radha Kishan Tickoo v. Bhushan Lal Tickoo , In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the 12 CRA No.9524/2018 parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Jagannath Prasad , K. Paramalal i v. I.M. Alangam, Krishna Rao Maharu Patil v. Onkar Narayan Wagh.
16. In Brij Mohan Singh v. Priya Brat Narain Sinha, a question arose whether the returned candidate had attained the age of 25 years on the date of his nomination. The High Court had set aside the election of the returned candidate on the ground that he was below the age of 25 years on the date of filing the nomination. This Court set aside the order of the High Court and upheld the election of the returned candidate on the ground that the burden of proving that the returned candidate had not attained the age of 25 years on the date of his nomination was on the election petitioner and since he had failed to prove that, the election of the returned candidate could not be set aside. This Court held that an entry recorded in the birth register maintained by an illiterate chowkidar by somebody else at his request, was not admissible and had no probative value within Section 35 of the Indian Evidence Act. In Ram Murt i v. State of Haryana the date of birth of a girl mentioned in the school certificate was not accepted. However in Mohd. Ikram Hussain v. State of U.P. this Court accepted the date of birth of a girl as mentioned in the school certificate as the date of birth mentioned therein was supported by an affidavit filed by the father of the girl."
(emphasis supplied)
18. Further, regarding the admissibility of the documents proved in support of the age of the prosecutix and their probative value, the Supreme Court in the case of Satpal Singh v. State of Haryana, (2010) 8 SCC 714 has held as under:-
19. So far as the issue as to whether the prosecutrix was a major or minor, it has also been elaborately considered by the courts below. In fact, the school register has been produced and proved by the Headmaster, Mohinder Singh (PW 3). According to him, Rajinder Kaur (PW 15), the prosecutrix, was admitted in Government School, Sharifgarh, District Kurukshetra on 2-5-1990 on the basis of school leaving certificate issued by Government Primary School, Dhantori. In the school register, her date of 13 CRA No.9524/2018 birth has been recorded as 13-2-1975. The question does arise as to whether the date of birth recorded in the school register is admissible in evidence and can be relied upon without any corroboration. This question becomes relevant for the reason that in cross- examination, Shri Mohinder Singh, Headmaster (PW
3), has stated that the date of birth is registered in the school register as per the information furnished by the person/guardian accompanying the students, who comes to the school for admission and the school authorities do not verify the date of birth by any other means.
20. A document is admissible under Section 35 of the Evidence Act, 1872 (hereinafter called as "the Evidence Act") being a public document if prepared by a government official in the exercise of his official duty. However, the question does arise as to what is the authenticity of the said entry for the reason that admissibility of a document is one thing and probity of it is different.
21. In State of Bihar v. Radha Krishna Singh6 this Court dealt with a similar contention and held as under:
"40. ... Admissibility of a document is one thing and its probative value quite another--these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil. ... (SCC p. 138, para
40)
53. ... where a report is given by a responsible officer, which is based on evidence of witnesses and documents and has a statutory flavour in that it is given not merely by an administrative officer but under the authority of a statute, its probative value would indeed be very high so as to be entitled to great weight. (SCC p. 143, para 53)
145. (4) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little. (SCC p. 171, para 145)"
22. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the 14 CRA No.9524/2018 judgments of this Court in Ram Prasad Sharma v. State of Bihar; Ram Murti v. State of Haryana Dayaram v. Dawalatshah; Harpal Singh v. State of H.P.; Ravinder Singh Gorkhi v. State of U.P.; Babloo Pasi v. State of Jharkhand; Desh Raj v. Bodh Raj and Ram Suresh Singh v. Prabhat Singh. In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. Such entries may be in any public document i.e. school register, voters list or family register prepared under the rules and regulations, etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain v. State of U.P. and Santenu Mitra v. State of W.B.
23. There may be conflicting entries in the official document and in such a situation, the entry made at a later stage has to be accepted and relied upon. (Vide Durga Singh v. Tholu.)
24. While dealing with a similar issue in Birad Mal Singhvi v. Anand Purohit, this Court held as under:
(SCC p. 619, para 15) "15. ... To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
25. A Constitution Bench of this Court, while dealing with a similar issue in Brij Mohan Singh v. Priya Brat Narain Sinha, observed as under: (AIR p. 286, para
18) 15 CRA No.9524/2018 "18. ... The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act."
26. In Vishnu v. State of Maharashtra20 while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded.
27. Thus, the entry in respect of age of the child seeking admission, made in the school register by semi-literate chowkidar at the instance of a person who came along with the child having no personal knowledge of the correct date of birth, cannot be relied upon.
28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of 16 CRA No.9524/2018 proof for the same remains as in any other civil and criminal case.
29. In case, the issue is examined in the light of the aforesaid settled legal proposition, there is nothing on record to corroborate the date of birth of the prosecutrix recorded in the school register. It is not possible to ascertain as to who was the person who had given her date of birth as 13-2-1975 at the time of initial admission in the primary school. More so, it cannot be ascertained as who was the person who had recorded her date of birth in the primary school register. More so, the entry in respect of the date of birth of the prosecutrix in the primary school register has not been produced and proved before the trial court. Thus, in view of the above, it cannot be held with certainty that the prosecutrix was a major. Be that as it may, the issue of majority becomes irrelevant if the prosecution successfully establishes that it was not a consent case.
(emphasis supplied)
19. On perusal of the aforesaid dictum of the Supreme Court and comparing it with the evidence available on record, it is found that the only tangible evidence regarding the age of the prosecutrix is her scholar register and the mark sheet and as already observed by the Supreme Court, such documents in themselves cannot be taken to be the proof of age of a person, in the absence of any cogent document on record. Apparently, in the present case, there is no birth certificate produced by the prosecution and thus, it cannot be said with certainty that the prosecutrix was less than eighteen years old at the time of incident. This fact is also fortified by the deposition of PW-9 Dr. Kiran Bansal who has clearly stated that the age of the prosecutrix might be around 17 to 18 years give or take 2 years margin. To top it 17 CRA No.9524/2018 all, even the testimonies of the parents of the prosecutrix indicate that she was more than 18 years old at the time of incident.
20. In such circumstances, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt regarding the age of the prosecutrix to be less than eighteen years old. Thus, it is held that at the time of incident the prosecutrix was more than eighteen years old.
21. So far as the consent of the prosecutrix is concerned, the prosecutrix has remained with the appellant for a considerable period of time of around 10 days short of 4 months. In her deposition, she has admitted that she did not inform to any other person that the appellant has abducted her and she is being subjected to sexual intercourse and considering the fact that the prosecutrix has resided with the appellant for a period of ten days short of four months and has not raised any alarm, it clearly goes to show that she was a consenting party and although she has stated that the appellant used to close the door from the outside when he used to go to earn his livelihood. However, this statement given by her in the Court is clearly missing from her statement given to the police Ex.D/1 wherein she has clearly stated that she had gone with the appellant on her own volition.
22. So far as the MLC is concerned, it is true that the doctor has no business to record the statement of the prosecutrix. However, it is 18 CRA No.9524/2018 found that in the format of the MLC itself, the doctor is required to write down the brief history of the case and it appears that only with a view to find out the circumstances under which the prosecutrix is brought to the hospital, she has been asked to narrate her story and it is also apparent that she confined it with the doctor to say that she had gone with the appellant on her own volition and had sexual intercourse, as per her own will only. This evidence, coupled with the other evidence as discussed above, clearly goes to show that the prosecutrix was a consenting party and in such circumstances, it is difficult for this Court to sustain the impugned judgment of conviction.
23. As a result, the appeal stands allowed and the impugned judgment is hereby set aside.
It is directed that the appellant be released from jail immediately, if not required in any other case.
(Subodh Abhyankar) Judge Pithawe RC RAMESH CHANDRA PITHWE 2021.11.19 14:40:28 +05'30'