Madhya Pradesh High Court
Waris Khan vs The State Of Madhya Pradesh on 11 November, 2021
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
CRA No.1506/2016
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: Hon'ble Shri Subodh Abhyankar J.
Criminal Appeal No.1506/2016
(Waris Khan s/o Mehmood Khan
Versus
The State of Madhya Pradesh)
*****
Shri S.K. Meena, learned counsel for the appellant.
Shri Shashwat Seth, learned Panel Lawyer for the respondent / State
of Madhya Pradesh.
*****
JUDGMENT
(Pronounced on this 11th day of November, 2021) This criminal appeal has been filed under Section 374 of The Code of Criminal Procedure against the judgment dated 07/10/2016 passed in S.T. No.361/2015 by Additional Sessions Judge, Narsinghgarh, District Rajgarh (M.P.) whereby finding the appellant guilty, the learned Judge of the trial Court has convicted him as under:-
CONVICTION SENTENCE
Imprisonment in
Section Act Imprisonment Fine
lieu of the fine
Indian Penal
376(2)(i) 10 Years R.I. Rs.5000/- 3 months R.I.
Code, 1860
Protection of
Children
4 from Sexual 7 Years R.I. Rs.5000/- 3 months R.I.
Offences
Act, 2012.
02. The case of the prosecution is that the FIR (Ex.P/5) in the present case has been lodged by the prosecutrix (P.W.3) on 2 CRA No.1506/2016 25/08/2015 at around 2.55 pm alleging that she has been raped by the present appellant at around 12 O'clock in the noon, while she was in her field and tying the tomato plants. It is alleged that as there was nobody around, the appellant came and took the prosecutrix to soyabean crop field and committed rape on her after removing her salwar. After the charge sheet was filed and the case was committed, the appellant was tried by the trial Court under Section 376(2)(i), 506-II of Indian Penal Code, 1860 and Section 4 of Protection of Children from Sexual Offences Act, 2012. After recording the evidence, learned Judge of the trial Court has convicted the appellant as aforesaid and being aggrieved, this appeal has been preferred.
03. Counsel for the appellant has submitted that the appellant has been falsely implicated in the present case on account of previous enmity between the parties, which was also admitted by the P.W.3 prosecutrix herself from para-8 onward of her deposition. It is further submitted that the previous dispute was that the complainant's goat was killed by the appellant's dog, as the appellant and his father did not pay any amount as compensation for killing of their goat, a false case has been registered against them. It is submitted that this fact has also been affirmed by mother and father of the prosecutrix namely, Suganbai (P.W.4) and Omprakash (P.W.5). It is also submitted that in the M.L.C report (Ex.P/10) which was recorded by Dr. Seema Pathak (P.W.6), there is no indication that there was forceful intercourse as no internal or external injuries were found on the person of the prosecutrix.
04. Counsel further submitted that so far as the age of the 3 CRA No.1506/2016 prosecutrix is concerned, no evidence has been led by proving any relevant documents in this behalf, as the prosecutrix's scholar register (Ex.P/12) and her mark sheet (Ex.P/13) have been proved which in themselves do not prove the age of the prosecutrix beyond reasonable doubt in the absence of the birth certificate or any other relevant documents. It is further submitted that even Dr. Seema Pathak (P.W.6) in para -13 of her statement has admitted that as the prosecutrix have 28 teeth her age can also be of 17 to 18 years. So far as the FSL report which has been procured subsequently by the Office of Advocate General is concerned, it is submitted that since it has been filed subsequently hence it is not relevant and cannot be made the basis to convict the appellant. It is also submitted that there is no DNA profiling of the samples received and this court, in the the case of Pankaj vs. State of M.P. In Cr.A. No.8202/2018 has already emphasized the importance of the DNA report and thus in the absence of any DNA report the appellant cannot be convicted. Counsel has also submitted that the samples which were seized from the prosecutrix and the appellant were not properly sealed and this fact has been admitted by Harinarayan Yadav (P.W.2).
05. Counsel for the respondent/State on the other hand opposed the prayer and submitted that no illegality has been committed by the trial Court in appreciating the evidence and the statements of the prosecutrix and other witnesses recorded in the Court are also consistent with their earlier statements given to the police and also the statement recorded under Section 164 of Cr.P.C (Ex.P/9). So far as the FSL report is concerned, it is 4 CRA No.1506/2016 submitted that there is no denying the fact that the FSL report does not disclose the grouping of samples seized from the person of the prosecutrix and also from her clothes, however, it does say that the vaginal slide as also the swabs which have been recovered from the under garments of the prosecutrix had semen and human spermatozoa and that it is for the appellant to explain the same. Thus it is submitted that the appeal being devoid of merits is liable to be dismissed.
06. Heard, the learned counsel for the parties and perused the record.
07. So far as the age of the prosecutrix is concerned, it would be apt to refer to the decision rendered by the Supreme Court in the case of Satpal Singh v. State of Haryana, (2010) 8 SCC 714, relevant paras read, 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 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.
5 CRA No.1506/201620. 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 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 6 CRA No.1506/2016 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) "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 7 CRA No.1506/2016 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 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 8 CRA No.1506/2016 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)
08. It is apparent from the aforesaid that the scholar register and mark sheet in themselves are not sufficient to prove the age of a person. In this regard the deposition of PW/6 Dr Seema Pathak is also relevant who has stated that the age of the prosecutrix can be around 17-18 years. In view of the same, it is held that the prosecution has not been able to prove that the age of the prosecutrix was less then 18 years at the time of the incident.
09. So far as the consent of the prosecutrix is concerned, it is found that the FIR in the present case has been lodged on 25.08.2015 at around 02.55 PM in respect of the offence which was committed on the prosecutrix at around 12.00 O'clock noon. It is also found that the distance of the police station from the place of the incident is around 20 kilometers. Thus, it is apparent that the FIR has been lodged with promptitude in which the prosecutrix has clearly stated that the appellant Waris committed rape on her when she was tying the tomato plants in the field, under the threat to her life and her family members but when he saw that prosecutrix's paternal aunt coming towards 9 CRA No.1506/2016 them, he fled from the spot. It is also found that the prosecutrix was examined on the same day by PW-6 Dr. Seema Pathak and although she has opined that no definite opinion regarding sexual intercourse can be given, however, it is also mentioned in the MLC that there was reddishness near the vagina and the hymen of the prosecutrix was also old torn. The appellant who was arrested on the next day of the date of incident i.e. on 26.08.2015, and was also examined on the same day and in his MLC Ex.P/11, it is found that smegma was not present, meaning thereby there was sexual intercourse by the appellant within last 24 hours. The articles seized from the prosecutrix and the appellant, viz., their clothes and slides etc. were seized vide Ex.P/4 and P/3 respectively which have been proved by PW-2 Harinarayan Yadav. On perusal of his deposition in the Court, it is found that although he has been suggested that the sealing of the article was not done properly, however, nothing material could be elicited from his depositions and thus, it is held that the sealing of the articles was proper. In view of the aforesaid evidence on record, it is held that that the prosecutrix was sexually assaulted on the date of incident but the question is whether it was the appellant who committed the offence.
10. So far as the deposition of prosecutrix PW-3 is concerned, she has been consistent regarding the offence of rape committed on her by the appellant and although she has been suggested that there was an enmity going on between her family and the family of the appellant, as the appellant's dog had killed their goat and regarding which the compensation also was not given by them, which led to filing of this false complaint of rape against the 10 CRA No.1506/2016 appellant, to which the prosecutrix has denied. However, she has admitted that after the dispute between them, the report was lodged by her after around 2 - 3 days.
11. PW-4 Sumanbai who is the aunt of the prosecutrix and was the first person to reach on the spot, when the offence was being committed on the prosecutrix. She is also consistent in her statement and has mentioned that she found the prosecutrix crying near the soyabean field of the appellant, who informed her that she has been rapped by the appellant. Although there are minor omissions and contradictions in her statement, but the same are not material, like, in her statement under Section 161 of Cr.P.C. she has not stated that she reached on the spot subsequently and found the prosecutrix crying near the field of the appellant.
12. Similarly PW-5 Omprakash, who happens to be the father of the prosecutrix has also deposed that the appellant had committed rape on her daughter and he has also been suggested that there was a dispute going on between the two families, because of which this false report has been lodged, but he has also emphatically denied the same but it is admitted that the FIR was lodged after two days of the dispute between the two parties.
13. In the considered opinion of this court, the lodging of the FIR after two days of the dispute between the parties is hardly a material circumstance giving any benefit to the appellant this is for the reason that the incident of rape has also taken place within two days' time of the dispute between the parties. This Court is of the considered opinion that there is no reason for the 11 CRA No.1506/2016 prosecutrix or her family members to falsely implicate the appellant for an offence which has been committed by some other person, especially when the offence is sexual in nature. In such facts and circumstances of the case, this Court finds that there was no consent on the part of the prosecutrix when the appellant had sexual intercourse with her.
14. This is coupled with the fact that ther was no smagma found on the penis of the appellant who was arrested on the next day only, suggestive that he had sexual intercourse within last 24 hours.
15. So far as the FSL Report dated 30.11.2015 is concerned, which has been obtained by the Office of the Advocate General, subsequently on 02.10.2021, during the pendency of this appeal, it is found that although there is no DNA Profiling of the samples received from the appellant and the prosecutrix, however, it is apparent that on the vaginal slide and on the clothes of the prosecutrix, semen stains and human spermatozoa were found, it was also found on the underwear and slide of the appellant. On the underwear of the prosecutrix human blood was also found but it could not be further be examined for its grouping as it was disintegreted.
16. Although, this the FSL report is admissible in evidence as provided u/s.293 and 294 of Cr.P.C. which provides for Reports of certain Government scientific experts may be used as evidence in any inquiry, trial or otehr proceedings. It is true that FSL report has not been proved or put to the accused u/s.313 of Cr.P.C., this court find it difficult to rely upon it.
17. Be that as it may, since this court has already found that 12 CRA No.1506/2016 the prosecution has proved its case, no illegality has been committed by the learned judge of the trial court to convict the appellant. Accordingly, the appeal fails and is hereby dismissed.
(Subodh Abhyankar) Judge sumathi Digitally signed by SUMATHI JAGADEESAN Date: 2021.11.18 17:07:03 +05'30'