Madhya Pradesh High Court
Mohandas Suryavanshi vs State Of M.P. on 19 February, 1998
Equivalent citations: 1999CRILJ3451
JUDGMENT S.P. Khare, J.
1. Appellant-Mohandas Suryavanshi has been convicted under Sections 366 and 376 Indian Penal Code for kidnapping Chandeshwari (PW-4) from her lawful guardianship and committing rape on her and sentenced to rigorous imprisonment for five years and seven years respectively by the 1st Additional Sessions Judge, Ambikapur, in Sessions Trial No. 204 of 1985 by the judgment dated 11-1-1988.
2. The prosecution case is that Chandeshwari (PW-4) aged about 14 years was a student of Class VIIIth in the Middle School, Chiranga and the accused was a teacher in that school. He developed infatuation towards her. On 10-4-1985 at 8. a.m. the accused came to her house with Hero Majestic Moped. He asked her to sit on the pillion seat of the moped and took her to Ambikapur. They stayed in a house where he had sexual intercourse with her three times. On 19-4-1985, he took her to his village Rampur and kept her in his house. There he had sexual intercourse with her several times. She was recovered by the police from the house of the accused on 24-4-1985. Harihar Prasad Singh (PW-5), father of the girl had reported the matter to the police on 20-4-1985 as per Ex. P. 3.
3. The accused pleaded not guilty. His defence was that he has been falsely implicated. The trial Court held that the prosecutrix was less than 16 years of age and she was kidnapped and raped by the accused.
4. In this appeal, Shri S.C. Datt, Senior Advocate has raised twofold arguments : (a) the prosecutrix was not less than 16 years, and (b) She was a consenting party. These are two points which arise for decision in this appeal.
5. Age :--
Chandeshwari (PW-4) was examined as a witness on 23-11-1987 and on that date her age was estimated by the trial Court as 16 years. Her father Harihar Prasad Singh (PW-5) has deposed that her age in the year 1985 when she was studying in the Middle School, Chiranga in Class VIII, was 14 years. According to her school certificate, Ex. P5, her date of birth is 8-9-1970. In para 13 in cross-examination, he has stated that actually the date of birth of his daughter is 2-10-1972 and in the school certificate it is wrongly mentioned. He got entry made at the time of her birth in the birth register, according to which she was born on 2-10-1972. At that time her name was Batni. At the time of admission in the school her name was written as Chandeshwari. His son had taken her for admission in the school. He has further stated that his eldest son was born in the year 1961. After him, he had two daughters and one son who was born on 17-3-1969. After him Chandeshwari was born on 2-10-1972. She was admitted in the school when she was 5-6 years of age. He has no daughter younger to Chandeshwari.
6. Bhinsari alias Kothhin (PW-8) is mother of the prosecutrix. She has deposed that her daughter's name was Batni in her childhood. She was aged 14-15 years when she was kidnapped. She was born in village Chiranga. Arun Kumar (PW-3) is brother of Chandeshwari (PW-4). His age was 18 years on 23-11-1987 when he gave his evidence. According to him the age of his sister was 151/2 years on the date ofhis deposition. R.C. Sen (PW-7) is Record-keeper in the office of the Collector, Ambikapur. He produced the birth register of the year 1972 of village Chiranga. In this register at serial number 1636, there is an entry that a female child was born to Harihar and her name is Batni. Ex. P-9 is the extract form that birth-register. In cross-examination he has stated that he does not know the person who made this entry in this register. The entry Ex. P-9 records the name of Kothhin Bai as the mother of the child. Her date of birth is shown as 2-10-1972. This register is of the office of the Directorate of Economics and Statistics of the Government of M.P.
7. Ex. P-9 is the certified copy of the birth register and it has been duly proved by the Record-keeper also. The identity of the girl is established by the evidence of the parents. She was named as Batni when she was born and she was named as Chandeshwari when she was admitted in the school. It is argued on behalf of the appellant that in the FIR it was not stated by Harihar Prasad (PW-5) that the name of Chandeshwari is Batni also, and therefore, the testimony of the parents on the point that Chandeshwari (PW-4) is Batni should not be believed. In the opinion of this Court the evidence of the parents on this point is trustworthy and the omission in the FIR that Chandeshwari was Batni at the time of her birth is not very significant. The father gave the current name of his daughter in the FIR. He was not expected to do more than that in the situation he was placed in. There is an inbuilt assurance that this entry is correct as the brother of the girl Arun Kumar (PW-3) was born on 17-3-1969 and she is younger to him.
8. It was held by the Supreme Court in Sidheshwar Ganguly v. State of West Bengal, AIR 1958 SC 143 : 1958 Cri LJ 273, that the birth certificate is conclusive evidence of the girl's age. Again in Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361:(1981 Cri LJ 1), it has been held that a birth entry made in the discharge of official duty can be proved by mere production of that entry and it is not necessary to examine the person who made it. This is admissible under Section 35 of the Evidence Act. That is also the view in State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 : 1996 Cri LJ 1728.
9. The learned counsel for the appellant has cited Brij Mohan v. Priya Brat Narain Sinha, AIR 1965 SC 282, in which it was held that an entry of birth made in an official record maintained by an illiterate Chowkidar by somebody else at his request does not come within Section 35 of the Evidence Act. But that is not the case here. In the present case the entry in the birth register was made by an official in discharge of his public duty and its identity has been established by the oral evidence of the parents of the girl. On the basis of the entry in the birth register Ex.P 9 coupled with the oral testimony of the parents it is held that the prosecutrix was born on 2-10-1972 and she was less than 16 years of age in April, 1984.
10. In the school certificate Ex.P-5 the age of the girl has been gi ven as 8-9-1970, but that is not correct. According to that date also, her age was below 16 years in 1984. It is argued on behalf of the appellant that in such a situation both the entries should be discarded and the girl should be held to be major. That easy course is not permissible for the Courts as it has a duty to ascertain the truth on the basis of the material on record. As already held birth entry must prevail as that is the conclusive evidence.
11. Point (b) -- Kidnapping Chandeshwari (PW-4) has deposed that on 18-4-1985 at about 8 a.m. she was near her house and she was called by the accused. She went to him and she was asked to sit on his Hero Majestic Moped. He took her to Ambikapur and had sexual intercourse with her, several times. It is writ large in her testimony that she was the consenting party. She was recovered by the police on 24-4-1985 from the house of the accused in village Rampur. Her recovery from the house of the accused is proved by the prosecution evidence and that is not disputed on his behalf. She was thus "taken" from village Chiranga to Ambikapur by the accused to have illicit intercourse with her. Her consent was wholly immaterial as she was minor less than 18 years of age. Her father's consent was not taken. In T.D. Vadgama v. State, AIR 1973 SC 2313 : 1973 Cri LJ 1541 the Supreme Court held that the word "takes" does not necessarily connote taking by force. This word means "to cause to go", "to escort" or "to get into possession". Even if the evidence relating to use of force or fraud is excluded the accused must be held to have taken the prosecutrix from her lawful guardianship for the purpose of having sexual intercourse with her and, therefore, he has been rightly held guilty for the offence under Section 366, IPC.
12. Rape.
Chandeshwari (PW-4) has deposed that the accused had sexual intercourse with her several times at Ambikarpur and Rampur. In cross-examination she has stated that the accused kept her with him for eight days and did not leave her alone even for one hour. He had given her clothes to wear. Dr. Smt. S. Pandey (PW-13) has testified that she had examined Chandeshwari (PW-4) on 25-4-1985. She had no injury on her person or on her genitals. There was old tear of her hymen. She had prepared two slides from vaginal discharge. In her opinion the girl was used to sexual intercourse and, therefore, no opinion could be given whether she has recent sexual intercourse. Her report is Ex. P-14. According to the evidence of Sharda Prasad, Head Constable (PW-15) he had recovered the girl from the house of the accused on 24-4-1985 as per Ex P-10 and had sent her for medical examination. He had seized the underwear of the accused as per seizure memo Ex. P-17. He had seized sari and saya of the girl and also the two slides as per seizure memo Ex.P-2. He had kept all these things in sealed cover and sent the same for examination to Forensic Science Laboratory and its report is Ex. P-20. According to this report seminal stains and human spermatozoa were found on sari, saya, underwear and the slides (A-1, A-2, B, C-1 and C-2).
13. From the testimony of the prosecutrix and the medical and forensic evidence, it is established that the accused had sexual intercourse with her albeit with her consent. The accused had kidnapped her and kept her for eight days and, therefore, he must have had sexual inter-course with her many times as deposed by her. She was less than 16 years of age and, therefore, her consent was immaterial. The Supreme Court has held in Harpal Singh v. State, AIR 1981 SC 361 : 1981 Cri LJ 1 that if once it was proved that the girl was below 16 years of age, the question of consent did not arise and the fact that no injury was detected on the private parts of the girl or that she was found to have been used to sexual intercourse also become irrelevant. That is also the view taken in Yashwant Rao v. State, AIR 1992 SC 1683 :1992 Cri LJ 2779.
14. The decision of the Supreme Court in Ram Murti v. State of Haryana, AIR 1970 SC 1029 : 1970 Cri LJ 991 has been cited on behalf of the appellant in support of the plea that the testimony of the prosecutrix should not be accepted without corroboration. As already discussed there is sufficient corroboration of the testimony of the prosecutrix in the present case. She lived with the accused for eight days and, therefore, he must have had sexual intercourse with her. It is not the case of the accused that he took her to worship her. It is pointed out that the prosecutrix was having some venereal disease and if the accused had sex relation with her he would have contacted the same. That is not necessary. He may or may not contact that disease. The Supreme Court has emphasised in State of A.P. v. G.S. Murthy (1997) 1 SCC 272 :1997 Cri LJ 774 that the Court must deal with cases under Section 376, IPC with utmost sensitivity and appreciate evidence in the totality of the background of the entire case and not in isolation. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies. State v. Gurmit Singh, AIR 1996 SC 1393 : 1996 Cri LJ 1728 has laid stress on the point that in such a case/inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity.
15. The trial Court has rightly convicted the appellant under Sections 366 and 376, Indian Penal Code and the sentences are also according to law. The appeal is dismissed.