Madhya Pradesh High Court
Luvkush vs The State Of Madhya Pradesh on 22 September, 2020
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
HIGH COURT OF MADHYA PRADESH:JABALPUR
SINGLE BENCH:Hon'ble Mr. Justice Subodh Abhyankar
CRIMINAL APPEAL NO.1361 OF 2018
Luvkush.
Vs.
State of Madhya Pradesh.
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Shri Kunal Dubey, learned counsel for the appellant.
Shri Rohan Harne, learned Panel Lawyer for the
respondent-State.
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JUDGEMENT
(Delivered on the 22nd day of September, 2020) This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant Luvkush aged 20 years against the judgment dated 2/1/2018 passed by the Sessions Judge, Raisen in Special Sessions Trial No.289/2017, whereby the learned Judge of the Sessions Judge while finding the appellant guilty, has sentenced him as under:
Conviction Sentence Default clause u/s 363 of IPC RI for three years with RI for one month.
fine of Rs.1,000/-.
366 of IPC RI for five years with RI for two months.
fine of Rs.1,500/-.
376(1) RI for ten years with RI for four
fine of Rs.10,000/-. months.
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2. In brief the facts of the case are that on 22.8.2017, the prosecutrix, aged around 17 years, was playing nearby her home at around 8 O'clock in the night when she was found to be missing by her brother Imrat Singh Kushwaha (PW-2). After initial search of the prosecutrix in the night itself the missing person report was lodged on 23.8.2017 at 9:30 in the morning. An FIR to this effect (Ex.P-13) was also lodged on the same date against the unknown person. During the investigation, it was found that the prosecutrix had eloped with the appellant and subsequently on 29.8.2017, she was recovered and was handed over to her mother vide Ex.P-3, her statement (Ex.P-1) under Section 164 of Cr.P.C. was also got recorded by the prosecutrix in which she stated that she knows the appellant Lavkush since last 3-4 months and he used to tell her that he loves her and wants to marry her and on 22.8.2017 when the appellant asked her to accompany him to Bhopal, she went to Bhopal with him and stayed with him for around 8 days and during this time the appellant also committed rape on her. She has also stated that she had not informed 3 anybody in her house that she is going with appellant Luvkush but she has also stated that now she does not want to have anything to do with him. After the charge sheet was filed and the case was committed to the trial Court, the learned Judge, after recording the evidence, convicted the appellant and sentenced him as aforesaid and being aggrieved of the same, the instant criminal appeal has been preferred.
3. Learned counsel for the appellant has raised only two grounds to assail the impugned judgment, firstly that the prosecutrix was a major at the time when the incident took place and secondly she was also a consenting party. Thus, it is submitted that the conviction is bad in law inasmuch as the learned Judge of the trial Court has held that the prosecutrix was minor at the time when the incident took place.
4. So far as the age of the prosecutrix is concerned, learned counsel for the appellant has drawn the attention of this Court to Ex.P-8C, which the copy of the scholar register of the prosecutrix wherein her date of birth is shown to be 12.2.2000. A certificate to this effect (Ex.P-9) has also been proved 4 by the prosecution which is issued by the Head Master, Government Middle School, Aama District Raisen wherein it is stated that as per the Class V mark sheet as also the Transfer Certificate as also other documents of the prosecutrix, her date of birth is 12.2.2000. Learned counsel for the appellant has submitted that while considering the aforesaid documents as also the deposition of Jiyalal Kushwaha (PW-4), the father of the prosecutrix, he has clearly stated that the prosecutrix was born at home only and her date of birth was given by him by his conjecture only and when her name was entered in the school, she was around 6-7 years old. A question was also put to him that the prosecutrix is around 18-19 years old to which he has denied. Thus, learned counsel for the appellant has submitted that since the father of the prosecutrix himself has stated that he had got entered the date of birth of the prosecutrix on conjecture only, it cannot be said that the prosecutrix was minor at the time of incident specially when her age, even according to the prosecution, is also hovering around 17-18 years. In support of his contention learned counsel for the appellant has also relied upon the 5 decision of the Hon'ble Supreme Court in the case of Birad Mal Singhvi Vs. Anand Purohit, reported in AIR 1988 SC 1796 (1988 Supp SCC 604).
5. Learned counsel for the appellant has also drawn the attention of this Court to the deposition of the prosecutrix (PW-1) and has submitted that there are material contradictions and omissions and thus the same cannot be relied upon to convict the appellant. It is further submitted that according to the prosecutrix she had gone to Bhopal with the appellant on her own volition. She has also stated that at the time when the appellant was ravishing her, she did not raise any alarm or call for any help and also did not inform any of the persons who were living nearby regarding her plight. The MLC of the prosecutrix also suggests no forcible intercourse as the doctor has opined that no opinion regarding rape can be given. Thus, it is submitted that the testimony of the prosecutrix cannot be relied upon and it has to be held that it is a case of consent.
6. On the other hand, learned counsel for the State has opposed the prayer of the appellant and has submitted that no case for acquittal is made out, as is 6 clear from the deposition of the prosecutrix and other witnesses that the appellant, who was otherwise like brother of the prosecutrix, as the father of the appellant was considered as brother by the mother of the prosecutrix and the prosecutrix had gone with the appellant with an assumption that no harm would be caused to her, as he is like a brother her. It is further submitted that the learned Judge of the trial Court, in para 10 of the impugned judgment has rightly appreciated the evidence regarding the age of the prosecutrix and has come to a conclusion that at the time of incident she was less than 18 years old. Thus it is submitted that once it is held that the prosecutrix was minor, her consent is in consequential. Otherwise also, it is submitted that it is not a case of consent, as it is apparent from the deposition of the prosecutrix, who has clearly stated that the appellant had forced himself upon her. Thus it is submitted that the appeal being devoid of merit be dismissed.
7. Heard the learned counsel for the parties and perused the record.
8. On the submissions made by the learned counsel for the appellant, firstly, this Court is required 7 to see if the prosecutrix was major at the time of incident and secondly, whether she was a consenting party.
9. From the record it is found that the missing person report of the prosecutrix was lodged on 23.8.2017 at around 9:20 AM in the morning in respect of the prosecutrix's disappearance on 22.8.2017 at around 8:30 in the night. The record also reveals that the prosecutrix was recovered after 8 days, on 29.8.2017 and after being medically examined she was handed over to her parents. In her MLC (Ex.P-12), Dr. Preeti Bala (PW-8) found that there was no internal or external injury on the person of the prosecutrix, however, her hymen was old ruptured and healed. Regarding the rape she has stated that no opinion regarding the same can be given.
10. So far as the age of the prosecutrix is concerned, admittedly the learned Judge of the trial Court has found the same to be 17 years, 6 months and 10 days relying upon the scholar register (Ex.P-8) of the prosecutrix. The learned Judge of the trial Court has also relied upon the said certificate on the ground that the aforesaid document (Ex.P-8) has not 8 been challenged by the appellant to be forged or false in any manner. However, the learned Judge of the trial Court has lost sight of the fact that Jiyalal Kushwaha (PW-4), who happens to be the father of the prosecutrix, in his cross examination has clearly stated that the prosecutrix was born at home only and he had entered the date of birth of the prosecutrix in the school register by his conjuncture only and in the same breath he has stated that at present the age of the prosecutrix is 15 years only. He has further stated that the date of birth of the prosecutrix was recorded after the prosecutrix was aged around 6-7 years old. On close scrutiny of the aforesaid evidence produced on record by the prosecution, this Court is of the considered opinion that evidence is not of sterling quality and sufficient hence cannot be relied upon on its face value specially when the father of the prosecutrix, in his testimony says that the date of birth of the prosecutrix at the time of entering her name in the school was based on his conjuncture only. It is quite possible that while doing so he might have missed a couple of years here or there leading to incorrect entry of date of birth in the scholar register. 9 In this regard reference may be had to the decision rendered by the Hon'ble Supreme Court in the case of Birad Mal Singhvi (supra) wherein in para 14 to 16 the Supreme Court has held as under:-
"14. ......No evidence was produced by the respondent to prove that the aforesaid doc- uments related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination pa- pers. 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 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, be- cause 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 al- ready 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 afore- said documents. Parents or near relations having special knowledge are the best per- sons 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 infor- mation 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 10 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 en- try 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 docu- ments as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the docu- ments. 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 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 men- tioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.11
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 dis- charge of his official duty specially enjoined by the law of the country is itself the rele- vant 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 ser- vant in discharge of his official duty, or any other person in performance of a duty spe- cially 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, Ghanchi Vora Samsuddisn Isabhai v. State of Gujarat and Radha Kishan Tickoo v. Bhushan Lal 12 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 sec- ondary school certificate has no probative value unless either the parents are exam- ined or the person on whose information the entry may have been made, is exam- ined, see Jagdamba Prasad v. Jagannath Prasad, K. Paramalali 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 up- held the election of the returned candidate on the ground that the burden of proving that the returned candidate had not at- tained 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 In- dian Evidence Act. In Ram Murti v. State of Haryana the date of birth of a girl men - tioned in the school certificate was not ac- cepted. 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 13 therein was supported by an affidavit filed by the father of the girl."
(emphasis supplied)
11. A perusal of the aforesaid dictum of the Supreme Court clearly reveals that the scholar regis- ter, mark sheet or transfer certificate cannot be taken to be the proof of the date of birth of the prosecutrix on their face value because it is also required to be proved as to how the date of birth came to be recorded in those documents in the first place. This can be done by leading proper evidence in support thereof of the person who entered the said date but in the present case, as has already been observed the fa- ther of the prosecutrix, Jiyalal Kushwaha (PW-4) has admitted that the prosecutrix was born at home only and he had entered the date of birth of the pros- ecutrix in the school register by his conjuncture only. Thus, it is held that the prosecution has not been able to discharge its initial burden that the prosecutrix was below the age of 18 years at the time of incident.
12. So far as the question regarding the consent of the prosecutrix is concerned, in this regard the de- position of the prosecutrix (PW-1) is relevant where she states that she knows the appellant since last 14 around 15 years, as she considered him to be her brother, as the father of the appellant is also consid- ered as the brother by her mother, so when the appel- lant asked the prosecutrix to accompany him to Bhopal she readily went to Bhopal on his bike without informing her family members. In the considered opinion of this Court even assuming for the sake of ar- guments that the prosecutrix considered the appellant to be her brother, it cannot be believed that she would not inform her parents that she is going with the ap- pellant to Bhopal from Raisen. In her deposition she has also stated that after taking her to Bhopal, they went into the house of a relative of the appellant and as the house was empty he committed rape on her and after spending night in the said house she called her brother Imrat Singh Kushwaha on the next day and thereafter his brother and parents came to Bhopal to get her. It is a matter of record that the prosecutrix was recovered after a period of 8 days, which has already been noted above but there is no explanation of the conduct of the appellant during the other six days, she has also not stated in her entire statement that she was threatened by the appellant in 15 any manner. Hence, in the considered opinion of this court, the statement of the prosecutrix does not in- spire confidence which is also fortified by the fact that in her cross examination she has also stated that al- though she considered the appellant to be her brother but she does not know how she came into the spell of the appellant. She has also stated at one place that she wanted to marry the appellant, however she cor- rected herself and said that she said it by mistake. She has also stated that when the appellant commit- ted rape on her, she did not protest or raise an alarm and also did not inform the neighbors. Thus from the statement of the prosecutrix it is apparent that she was also a consenting party.
13. In view of the aforesaid discussion this Court is of the considered opinion that the appellant has made out a case for interference in the impugned judgment of conviction, which clearly suffers from misreading and non-consideration of evidence on record, thus liable to be set aside.
14. As a result, the appeal stands allowed and the impugned judgment dated 2.1.2018 passed in Special Sessions Trial No.289/2017 by the Sessions 16 Judge, Raisen is hereby set aside. The appellant is acquitted from all the charges leveled against him. At present the appellant is in jail, hence it is directed that he be released forthwith.
15. A certified copy of this judgment be sent to the learned Court below for information and compliance, if any.
(Subodh Abhyankar) Judge 22/09/2020 Digitally signed by MANJOOR AHMED Date: 2020.09.25 10:24:59 +05'30' Ansari