Madhya Pradesh High Court
Dinesh vs The State Of Madhya Pradesh on 18 July, 2022
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
1
Cr.Appeal No.263/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 18th OF JULY, 2022
CRIMINAL APPEAL No. 263 of 2017
Between:-
DINESH S/O RAMESH MAIEDA , AGED ABOUT 22 YEARS,
OCCUPATION: LABOUR GRAM DAULATPURA, THANA SHIVGARH,
DISTT. RATLAM (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THRU. P.S. SHIVGARH, DISTT. RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAHUL SOLANKI, GOVT. ADVOCATE)
Reserved on: 23.04.2022
This application coming on for judgment this day, Hon'ble Shri
Justice Satyendra Kumar Singh passed the following:
JUDGMENT
Satyendra Kumar Singh, J., Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] being aggrieved by the judgment dated 30.01.2017 passed by the Court of 1 st Additional Sessions Judge / Special Judge (POCSO Act), Ratlam in 2 Cr.Appeal No.263/2017 S.T.No.115/2016, whereby the appellant has been convicted for the offence punishable under Section 363, 376(2)(n) and 506-II of Indian Panel Code, 1860 (in short 'IPC') and under Section 5(L)/6 of the Protection of Children against Sexual Offences, 2012 and in view of the provisions of Section 42 of POCSO Act, sentenced him as under:-
CONVICTION SENTENCE
Section Act Imprisonment Fine Imprisonment in
lieu of fine
363 IPC 04 years 500/- 2 months RI
376(2)(N) IPC 01 years 200/- 1 months RI
506 Part- II IPC 10 years 3000/- 6 months RI
2. The prosecution case in brief is as follows:
(i) The minor prosecutrix aged about 17 years and appellant were
known to each other for about a year. On 14.06.2016 at about 14:00 hours, when prosecutrix went to Shivgarh Bazar, appellant met her there and forcefully took her towards Shivgarh Sailana Road, kept her there for whole night near a place, where construction work of railway was going on and committed rape upon her thrice. On 15.06.2016 at about 10:00 hours, he left her threatening not to say about the incident to anyone otherwise he will kill her and her family members. Prosecutrix narrated the incident to her brother and thereafter, on the same day at about 21:30 hours, reported the matter to the police, on the basis of which SI Priyanka Kamble lodged an FIR (Ex.P-1) against the 3 Cr.Appeal No.263/2017 appellant at Police Station Shivgarh, District Ratlam .
(ii) SI Priyanka Kamble thereafter vide letter (Ex.P-7) sent the prosecutrix to District Hospital, Ratlam for medical examination, where on the next day i.e. 16.06.2016 at about 12:00 noon Dr. Shalini Pokhrana medically examined the prosecutrix and found her hymen ruptured, margin congested and tender, post commisure torned and an abrasion measuing 1 x 1.5 cm on post vaginal wall. She prepared MLC report (EX.P-5) and opined that sexual intercourse was done with the prosecutrix within seven days from medical examination. She prepared and sealed her vaginal slide alongwith her inner wear and handed over the same to the lady constable who brought her there.
(iii) SHO Suresh Balraj went to the place of incident, prepared spot map (Ex.P-3), recorded statements of the prosecution witnesses, arrested the appellant as per arrest memo (Ex.P-8) and vide letter (Ex.P-9) sent him to District Hospital, Ratlam for medical examination, where Dr. Yogesh Nikhra medically examined him and prepared MLC report (Ex.P-14). SHO Suresh Balraj obtained prosecutrix's school scholar register entry (Ex.P-6) with regard to her age from the Govt. EGS School, Valarundi. He vide letter (Ex.P-9) sent the seized articles to forensic laboratory, obtained FSL report (Ex.P-11) and after completion of investigation, filed the charge sheet before the Court of 4 Cr.Appeal No.263/2017 Judicial Magistrate First Class, Ratlam, who committed the case to the Court of Additional Sessions Judge/ Special Judge, (POCSO Act), Ratlam.
3. Learned trial Court considering the material prima-facie available on record framed the charges u/S 363, 376(2)(N) and 506 Part-II of IPC and under Section 5(L)/6 of POCSO Act, 2012 against the appellant who abjured guilt and prayed for trial.
4. Learned trial Court after appreciating the oral as well as documentary evidence available on record, convicted the appellant for the offences punishable u/S 363, 376(2)(N) and 506 Part-II of IPC and u/S 5(L)/6 of POCSO Act, 2012 and in view of the provision of Section 42 of POCSO Act, 2012, sentenced him as stated in para 1 of the judgment. Being aggrieved by the said judgment of conviction and order of sentence, appellant has preferred this appeal for setting aside the impugned judgment and discharging him from the aforesaid charges framed against him.
5. Learned counsel for the appellant submits that the learned trial Court has committed legal error while appreciating the evidence available on record. Prosecution has failed to prove the fact that prosecutrix was below 18 years of age at the time of incident as nothing except school scholar register entry has been produced on record. It has 5 Cr.Appeal No.263/2017 not been brought on record that on what basis prosecutrix's date of birth was written in the aforesaid school scholar register as 05.10.1998. From the statement of prosecutrix as well as her brother - Gowardhan, it is apparent that prosecutrix was having affair with the appellant. She was consenting party and voluntarily went with the appellant. Thus, impugned judgment of conviction and order of sentence deserves to be set aside and appellant may be acquitted from the charges framed against him.
6. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence submits that judgment so passed by the trial Court is based on proper appreciation of evidence available on record. Therefore, confirming the judgment of conviction and order of sentence, the appeal filed by the appellant deserves to be dismissed.
7. Heard learned cousel for both the parties at length and perused the record.
8. Prorsecutrix (PW-1) deposed that on the date of incident there was a haat bazaar at Shivgarh and she went there to buy a slipper. She further deposed that appellant met her there near Bus Stand, forcefully took her towards Sailana Road about a kilometre and forcefully committed sexual intercourse with her near a place where construction 6 Cr.Appeal No.263/2017 work of railway was going on. She admitted that aforesaid place was an open place and she was there for whole night with the appellant and also slept there and remained in his company till next day morning. She, in Para 6 and 7 of her cross-examination, also admitted that she knew the appellant since 2015 i.e. about more than a year prior to the date of incident and he took her from a place, where due to Bazaar day, there was a crowd of about 500 people alongwith police personnels. Therefore, it appears quite unnatural that she was forcefully taken by the appellant from the aforesaid place.
9. From the medical evidence, although it was found that she was subjected to sexual intercourse as opined by Dr. Shalini Pokhrana (PW-
4) in her statement as well as in MLC report (Ex.P-5), prepared by her that during medical examination of the prosecutrix, her hymen was found ruptured, margin congested and tender, Post-commisure torned and an abrasion measuring measuing 1x 1.5cm on post vaginal wall. But as prosecutrix (PW-1) deposed that she was subjected to forcefull sexual intercourse on the ground and Dr. Shalini Pokhrana (PW-4) specifically deposed that no external injury was found on her body therefore, prosecution story with regard to commission of forcefull sexual intercourse with the prosecutrix also become doubtful. Hence, the main issue which falls for consideration is whether prosecutrix is 7 Cr.Appeal No.263/2017 minor at the time of incident.
10. In this regard prosecution has examined prosecutrix' elder brothers Gowardhan (PW-2), Sohan (PW-3) and Prabhari of Govt. EGS School, Valarundi, Amar Singh Ninama (PW-5) and has produced school scholar register entry (Ex.P-6) of the prosecutrix, wherein her date of birth is written as 05.10.1998. Amar Singh Ninama (PW-5) deposed that prosecutrix studied in the aforesaid school till 5 th standard and in school scholar register entry her date of birth is written as 05.10.1998 but he admitted in his cross-examination that he is not aware about the fact that on what basis her father told her date of birth at the time of her admission. Gowardhan (PW-2) and Sohan (PW-3) have deposed that their father died 10-12 years ago and admitedly he got admitted the prosecutrix in the year 2004 at the age of 6 years, therefore, this fact also seems doubtful that prosecutrix was below 18 years of age at the time of incident.
11. Admittedly, prosecutrix's father had died and prosecution has not proved any other oral or documentary evidence with regard to the fact that on what basis prosecutrix's date of birth was written in her school scholar register as 05.10.1998. In the aforesaid circumstances, it can not be said that prosecution has proved this fact that prosecutrix was minor and was below 18 years of age at the time of incident. In this 8 Cr.Appeal No.263/2017 regard observation made by Hon'ble Supreme Court in the case of Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714 can be relied upon, relevant are 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 Head Master, Mohinder Singh (PW 3). According to him, Rajinder Kaur (PW 15), the prosecutrix, was admitted in Government School, Sharifgarh, Dist. Kurukshetra on 2.05.1990 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 13.02.1975. 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, Sh. Mohinder Singh, Head Master (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.
• A document is admissible under Section 35 of the Indian Evidence Act, 1872 (hereinafter called as `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 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. • In State of Bihar & Ors. Vs. Radha Krishna Singh & Ors. AIR 1983 SC 684, 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 of its probative value may be nil..
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 9 Cr.Appeal No.263/2017 great weight.
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."
• 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 Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official 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, voter 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 Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.
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 Shri Raja Durga Singh of Solon Vs. Tholu & Ors. AIR 1963 SC 361).
24. While dealing with a similar issue in Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796, this Court held as under:-
"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 10 Cr.Appeal No.263/2017 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 Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282, observed as under:-
"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 Vs. State of Maharashtra (2006) 1 SCC 283, 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 un-impeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- impeccable 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 summerised 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 11 Cr.Appeal No.263/2017 examine its probative value. The authenticity of the entry would depend as 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 13.02.1975 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)
12. In view of the aforesaid decision rendered by the Hon'ble Apex Court, it is held that the prosecution has not been able to prove its case beyond reasonable doubt that the age of the prosecutrix was below 18 years of age at the time of incident. As this fact has already been found doubtful that appellant forcefully took the prosecutrix from a crowded place and forcefully committed sexual intercourse with her, therefore, the defence taken by the appellant that she was a consenting party, cannot be ruled out. In this regard, in para 10 of her cross-examination wherein she deposed that in her tribal society, when a boy and girl went together somewhere, then dispute resolves as per prevailing practice of 12 Cr.Appeal No.263/2017 'Bhanjagade', according to which family members of the girl demanded money from the family of boy and if the matter do not resolve by this, then it was reported to the Police. Her brother Sohan (PW-3) in para 2 of his cross-examination specifically deposed that next day of the incident, when prosecutrix came back then people of the village gathered and thereafter it was decided to report the matter to police. Gowardhan (PW-2) in para 6 of his cross-examination admitted that when prosecutrix did not return in the night and came next day, she on being asked told him that she was with appellant in the night.
13. In the light of the aforesaid discussion, this Court finds that the prosecution has failed to prove its case beyond reasonable doubt. Learned trial Court has committed error in holding the appellant guilty for the offences punishable under 363, 376(2)(N) and 506 Part-II of IPC and under Section 5(L)/6 of POCSO Act, 2012 . Thus, this Court is of the considered opinion that the impugned judgment cannot be sustained in the eyes of law and facts on record, and is liable to be set aside. Hence, conviction of the appellant cannot be upheld and the appeal filed by the appellant deserves to be allowed. Accordingly, this Court passes the following order:
(i) Criminal Appeal No.263/2017 filed by the appellant -
Dinesh is allowed.
13Cr.Appeal No.263/2017
(ii) The judgment of conviction and order of sentence dated 30.01.2017 passed in S.T.No.115/2016 by which appellant has been convicted under 363, 376(2)(N) and 506 Part-II of IPC and under Section 5(L)/6 of POCSO Act, 2012 and sentenced him as stated in para 1 of the judgment is hereby set aside.
(iii) Appellant be set at liberty, if not required in any other case.
(iv) Fine amount(if any) deposited by the appellant be refunded to them.
The Registry is directed to send back the trial Court record forthwith alongwith the copy of this judgment.
Certified copy as per rules.
(Satyendra Kumar Singh) Judge vibha/-
VIBHA PACHORI 2022.07.19 18:12:06 +05'30'