Madhya Pradesh High Court
Rakesh vs The State Of Madhya Pradesh on 21 September, 2019
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
1 CRA No.1128/2016
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No. 1128/2016
.........Appellant: Rakesh
Versus
.......Respondent : State of M.P.
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Shri A.K. Jain, Counsel for the appellant.
Shri Anoop Nigam, Panel Lawyer for the respondent/State.
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Date of hearing : 21/09/2019
Date of Judgment : 21/09/2019
Whether approved for reporting:
Law Laid down :
Significant paragraph numbers:
JUDGMENT
(21/09/2019) This Criminal Appeal under Section 374 (2) of Cr.P.C. has been filed against the judgment and sentence dated 4.10.2016 passed by Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Shivpuri in Sessions Trial No.14/2016 by which the appellant has been convicted and sentenced for the following offences:- 2 CRA No.1128/2016
Section Act Imprisonment Detail of Imprisonmen fine/if t in lieu of deposited fine 363 IPC 3 Years RI 2000/- 40 days' RI 366 IPC 5 Years RI 3000/- 2 months RI 4 POCSO Act 7 Years RI 5000/- 6 months RI 376(1) IPC No separate sentence awarded in the light of conviction under Section 4 of POCSO Act, 2012
2. The necessary facts for disposal of the present appeal in short are that on 25.10.2015 the appellant kidnapped the minor prosecutrix and committed rape on her. The allegations are that on 25.10.2015 at about 8:00 AM, the complainant after leaving the prosecutrix and her son in the house went to the field along with her husband for plucking the groundnuts. At about 7:00 PM when they came back, then they were informed by their son that the prosecutrix had left her house at about 11:00 AM on the pretext of going to the market and from thereafter she has not returned back. Thereafter, the complainant and her husband tried to search the prosecutrix and they found that the appellant Rakesh has kidnapped the prosecutrix who is aged about 16 years. Accordingly, on 26.10.2015 at about 11:00 AM the complainant Smt. Laxmi lodged a report in Police Station Bhaunti District Shivpuri and, accordingly, Crime No.426/2015 was registered for offence under Sections 363, 366 of IPC and under Section 8 of Protection of Children from Sexual 3 CRA No.1128/2016 Offences Act, 2012 (POCSO Act). The spot map on the information of the complainant was prepared. The prosecutrix was recovered on 1.11.2015. She was medically examined. Her statement under Section 164 of Cr.P.C. was recorded. The prosecutrix was handed over to the custody of her parents. The statements of the witnesses were recorded. The offence under Section 376 of IPC was added. The school certificates regarding her date of birth were seized. The appellant was arrested. The vaginal slide, semen slide etc. were sent for forensic test to FSL, Gwalior. Accordingly, the charge sheet was filed for offence under Sections 363, 366, 376 of IPC, under Section 8 of POCSO Act and under Section 3(1)(12) and 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The appellant abjured his guilt and pleaded not guilty.
3. The prosecution in order to prove its case examined the complainant Laxmi (PW-1), Prosecutrix (PW-2), Badri (PW-3), Suresh Chandra Pateriya (PW-4), Dr. Indu Jain (PW-5), Priti Rathore (PW-6), B.L. Ateriya (PW-7), Dr. Pankaj Gupta (PW-8) and Ramesh Singh Bhadoriya (PW-9).
4. The Trial Court by judgment dated 4.10.2016 acquitted the appellant for offence under Section (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act but convicted under Sections 363, 366, 376(1) of IPC and under Section 4 of POCSO Act and sentenced him to undergo the jail sentence as mentioned above.
5. Challenging the judgment and sentence passed by the Court 4 CRA No.1128/2016 below, it is submitted by the counsel for the appellant that the prosecutrix was a consenting party. She eloped with him on 25.10.2015 and remained with him upto 1.11.2015. She moved from one place to another. She did not raise any alarm which clearly indicates that she was a consenting party and, accordingly, no offence is made out. It is further submitted that the prosecutrix is major.
6. Per contra, it is submitted by the counsel for the State that according to the prosecution case, the date of birth of the prosecutrix was 3.2.1999 and the incident took place on 25.10.2015. Thus it is clear that she was below 18 years of age and in view of Section 375 (sixthly) of IPC, the consent of the prosecutrix is immaterial.
7. Heard the learned counsel for the parties.
8. The question for consideration is that what was the age of the prosecutrix on the date of the incident.
9. Ramesh Singh Bhadoriya (PW-9) who was working as Incharge Headmaster, Government Middle School, Bhaunti, District Shivpuri has proved the school admission register of the prosecutrix as Ex.P/13. According to which, the date of birth of the prosecutrix was 3.2.1999 and, accordingly he had issued a certificate which is Ex.P14. In cross- examination, this witness has specifically stated that the age certificate Ex.P/14 was issued on the basis of the school admission register.
10. It is submitted by the counsel for the appellant that it is clear from the evidence of Laxmi (PW-1) and Badri (PW-3) that prosecution has failed to prove the age of the prosecutrix because Badri (PW-3) has 5 CRA No.1128/2016 admitted that at the time of admission he had disclosed the age of the prosecutrix by his assessment.
11. It is further submitted that if the margin of two years is given to the appellant, then it would be clear that the prosecutrix was major on the date of incident and thus the consent becomes material.
12. Heard the learned counsel for the appellant on the question of age of the prosecutrix.
13. The Supreme Court in the case of Jarnail Singh Vs State of Haryana reported in (2013) 7 SCC 263 has held as under :
22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
"12. Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the 6 CRA No.1128/2016 Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i),
(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by 7 CRA No.1128/2016 the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal 8 CRA No.1128/2016 authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.
24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6 on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix VW, PW
6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6 had studied up to Class 3. Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records indicating that the prosecutrix VW, PW 6 was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6.
The Supreme Court in the case of State of Chhattisgarh Vs. Lekhram reported in (2006) 5 SCC 736 has held as under :
12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of 9 CRA No.1128/2016 their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect.
13. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws' place for some time and after the "gauna" ceremony, she came back. The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix.
14. Only because PW 3 the father of the prosecutrix could not state about the date of birth of his other children, the same, by itself, would not mean that he had been deposing falsely. We have noticed hereinbefore, that he, in answer to the queries made by the counsel for the parties, categorically stated about the year in which his other children were born. His statement in this behalf appears to be consistent and if the said statements were corroborative of the entries made in the register in the school, there was no reason as to why the High Court should have disbelieved the same. We, therefore, are of the opinion that the High Court committed a serious error in passing the impugned judgment. It cannot, therefore, be sustained. It is set aside accordingly.
The Supreme Court in the case of Murugan VS. State of T.N. reported in (2011) 6 SCC 111 has held as under :
24. The documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Evidence Act, 1872. (Vide Umesh Chandra v. State of Rajasthan 10 CRA No.1128/2016 and State of Bihar v. Radha Krishna Singh.)
25. This Court in Madan Mohan Singh v. Rajni Kant considered a large number of judgments including Brij Mohan Singh v. Priya Brat Narain Sinha, Birad Mal Singhvi v. Anand Purohit, Updesh Kumar v. Prithvi Singh, State of Punjab v. Mohinder Singh, Vishnu v. State of Maharashtra and Satpal Singh v. State of Haryana and came to the conclusion that while considering such an issue and documents admissible under Section 35 of the Evidence Act, the court has a right to examine the probative value of the contents of the document. The authenticity of entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such document may also require corroboration in some cases.
26. In the instant case, in the birth certificate issued by the Municipality, the birth was shown to be as on 30-3-1984; registration was made on 5-4-
1984; registration number has also been shown; and names of the parents and their address have correctly been mentioned. Thus, there is no reason to doubt the veracity of the said certificate. More so, the school certificate has been issued by the Headmaster on the basis of the entry made in the school register which corroborates the contents of the certificate of birth issued by the Municipality. Both these entries in the school register as well as in the Municipality came much before the criminal prosecution started and those entries stand fully supported and corroborated by the evidence of Parimala (PW 15), the mother of the prosecutrix. She had been cross- examined at length but nothing could be elicited to doubt her testimony. The defence put a suggestion to her that she was talking about the age of her younger daughter and not of Shankari (PW 4), which she flatly denied. Her deposition remained unshaken and is fully reliable.
The Supreme Court in the case of Mukarrab v. State of U.P. reported in (2017) 2 SCC 210 has held as under :
26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age 11 CRA No.1128/2016 of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination.
At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
"In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development."
Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.
27. In a recent judgment, State of M.P. v. Anoop Singh, it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi and Anoop Singh cases, we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.
28. At this juncture, we may usefully refer to an article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan", which reads as under:
"There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can 12 CRA No.1128/2016 usually be assessed more accurately in younger age group by dentition and ossification along with epiphyseal fusion.
[Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill Livingstone Edinburgh London Melbourne and New York: 1996; 341-342]; A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children.
[Ref.: Parikh C.K. Parikh's Textbook of Medical Jurisprudence and Toxicology, 5th Edn., Mumbai Medico-Legal Centre Colaba:
1990; 44-45];
* * * Variations in the appearance of centre of ossification at wrist joint shows influence of race, climate, diet and regional factors. Ossification centres for the distal ends of radius and ulna consistent with present study vide article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan" by Dr Ashutosh Srivastav, Senior Demonstrator and a team of other doctors, Journal of Indian Academy of Forensic Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973]."
14. Thus, if the evidence led by the prosecution is considered in the light of above mentioned judgments then it is clear that when the School record of the prosecutrix is available, then it is not necessary to look for any other evidence and the School record is conclusive because at the time of admission of the child, nobody could have anticipated the present situation and under Section 35 of Evidence Act, the school admission register is relevant. Further, the age of the prosecutrix, as mentioned in the School Record, further finds corroboration from the ossification test report. Thus, it is held that the prosecutrix was minor on the date of incident.
13 CRA No.1128/2016
15. Once, it is held that the prosecutrix was minor, then whether She was a consenting party or not would be immaterial.
16. Under these circumstances, it is held that the date of birth of the prosecutrix was 3.2.1999 and on the date of incident i.e. 25.10.2015 she was minor below the age of 18 years.
17. The prosecutrix (PW-2) has stated that she is aged about 15 years and on the date of incident, the sister-in-law (Bhabhi) of the appellant namely Bharti came to her house and persuaded to go to the market. The appellant met in the market and persuaded that she should accompany him. Accordingly, they went to Jhansi and from there they went to Hyderabad by train. They stayed for a night in the house of the friend of the appellant. She was raped by the appellant. Thereafter, they went to Badora village. The parents of the appellant as well as the father of his sister-in-law (Bharti) also came there along with Sunil and Kaptan and pressurized her to depose in accordance with their instructions, otherwise she would be killed. Thereafter, Sunil informed Bhaunti Police Station from where she was recovered by police and Bhaunti Police Station brought her to the Police Station Badora. The recovery memo was prepared. She informed everything to the doctor. In the cross- examination, she specifically stated that she had never disclosed her age as 20 years. She further stated that she never disclosed to the doctor that she had gone to Jhansi along with the appellant. She further deposed that she has not informed the doctor that she has gone as per her own wishes. Certain omissions and contradictions with regard to the involvement of 14 CRA No.1128/2016 Bharti and other co-accused persons were pointed out. She once again denied that she was aged about 20 years. However, she admitted that she is now married. She further denied that she was not raped by the appellant at Hyderabad.
18. The prosecutrix was medically examined by Dr. Indu Jain (PW-5) and the medical report is Ex.P/10. In the medical examination, hymen perineum was found to be torn. No external injuries were found on her body. This witness was cross-examined but she was not cross-examined on the medical report given by this witness.
19. Thus if the evidence which has come on record is considered in the light of the evidence of Ramesh Singh Bhadoriya (PW-9), prosecutrix (PW-2) and Dr. Indu Jain (PW-5) it is clear that the prosecutrix was less than 18 years age on the date of incident i.e. 25.10.2015. The prosecutrix has specifically stated that she was raped by the appellant at Hyderabad and the medical evidence fully corroborates the allegation of rape by the appellant.
20. Since this Court has already come to a conclusion that the prosecutrix was below 18 years of age on the date of incident, therefore, whether she was a consenting party or not is immaterial. Accordingly, the conviction of the appellant under Section 363, 366, 376(1) of IPC and under Section 4 of POCSO Act is hereby affirmed.
21. So far as the sentence awarded to the appellant is concerned, the minimum sentence for offence under Section 4 of POCSO Act at the relevant time was seven years. Similarly, in the year 2015, the minimum 15 CRA No.1128/2016 sentence for offence under Section 376(1) of IPC was seven years and, accordingly, the Trial Court has awarded sentence for offence under Section 4 of POCSO Act and has not awarded separate sentence for offence under Section 376(1) of IPC. In view of the minimum sentence provided under Section 4 of POCSO Act, the sentence awarded by the Trial Court does not found for any interference. Accordingly, the judgment and sentence dated 4.10.2016 passed by Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Shivpuri in Sessions Trial No.14/2016 is hereby affirmed.
22. The appellant is in jail. He shall undergo the remaining jail sentence.
23. The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA) Judge (alok) ALOK KUMAR 2019.10.01 14:49:58 +05'30'