Madhya Pradesh High Court
Fiza Parvez vs Firoz Khan @ Khabda on 2 August, 2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
(SINGLE BENCH : HONâBLE SHRI JUSTICE J.P.GUPTA)
M.Cr.C No.21795/2016
Fiza Parvez
Vs.
Firoz Khan @ Khaba & another
Shri Vikalp Soni, learned counsel for the applicant.
Shri Pradeep Gupta, Panel Lawyer for the respondent/State.
Whether approved for reporting : (Yes/No).
ORDER
( 02.08.2017) This petition has been filed under section 378(3) read with section 372 of the Cr.P.C for grant of leave to appeal against the judgment dated 01/09/2016 passed by the XIVth Additional Sessions Judge, Bhopal in S.T No.556/2013 whereby the respondent no.1 Firoz have been acquitted of the offence punishable under section 363, 366 of the IPC.
2. In brief, the facts of the case are that on 14/05/2013 respondent took away prosecutrix without consent of the parent of prosecutrix and kidnapped her. In this regard father of the prosecutrix lodged FIR on the same day in police station Aishbag, Bhopal where Crime No.211/2013 was registered under section 363, 366 of the IPC and later on prosecutrix was found in company of the respondent and was produced before the Judicial Magistrate, where she refused to go in the house of her father and also make complaint for commission of rape by her brother before leaving the house with the respondent. On completion of the investigation, the charge sheet was filed and the case was committed to the Sessions Court and respondent no.1 claimed to be innocent and after trial, learned Trial court acquitted the respondent no.1 as the prosecution failed to prove the charges beyond reasonable doubt.
3. The prosecutrix have challenged aforesaid finding of the learned trial court and prayed for grant of leave to appeal on the basis that finding of the learned trial court is contrary to the law, the facts and circumstances of the case, the learned trial court has not appreciated the oral and documentary evidence in the right prespective. The prosecutrix has categorically stated against the respondent with regard to the fact constituted alleged offence and about her age learned trial court has wrongly come to the conclusion that the prosecutrix was major at the time of the incident. In view of the law laid down by the Hon'ble Apex Court in the case of Jarnail Singh Vs. State of Haryana reported in 2013 AIR SCW 4438 held that with a view to determine age of the prosecutrix provision contained in Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 shall be followed and according to the aforesaid Rules firstly the date of birth mentioned in the record of the school at the time of admission in st Class 1 to be considered in place of report of medical expert. Therefore, finding of the learned trial court is illegal and prosecution has proved its case. There is fair chance to succeed in the appeal, therefore, leave to appeal be granted.
4. Considering the contention of the learned counsel for the parties and on perusal of the record, it is found that with regard to kidnapping of the prosecutrix by the respondent no.1 only statement of the prosecutrix is on record and she has been examined as PW-11 on 12/05/2016 before the trial court. Her statement is full of contradiction and exaggeration and prima facie not reliable. On careful scrutiny of her statement, it appears that she willfully went with the respondent no.1 as in her parental house she was under sexual assault by her brothers. The statement given by her during the investigation to the Magistrate concerned and police which content as Ex.D-1, Ex. D-8 and Ex.D-9 do not disclose the story narrated by the prosecutrix before the court that she was sold out by her neighbourer Farida to the respondent, by getting Rs.30,000/- from the him and thereafter handed over to the respondent at Sehore where respondent committed rape with her and further arranged marriage with her on the basis of false medical certificate with regard to age of her. In such circumstances, learned trial court has not committed any error in discarding the evidence of the prosecutrix. However from the evidence of prosecutrix it establish that she went with respondent Firoz and also married with her and it was done with the consent of the prosecutrix.
5. In such circumstances, the question of age of the prosecutrix is very much crucial. In this regard father of the prosecutrix Syed Parvez (PW-7) has not disclosed the age of the prosecutrix. Sister of the prosecutrix Fareen Parvez (PW-10) has stated that at the time of incident age of the prosecutrix was 15 years, but with regard to age of prosecutrix sisterâs evidence have no much value. Prosecutrix (PW-11) herself has not stated her age at the time of the incident. Smt. M.Z Khan (PW-1) has stated that prosecutrix was studying in Sunshine Convent School, Bagh Dilkusha, Bhopal and according to the school record date of birth of prosecutrix was 26/07/1997 as per School Record Ex.P-2 and it st was recorded on 23/07/2004 when she was admitted in Class 1 but the witness has admitted that the entry in Ex.P-2 has not been made by her. The aforesaid school is a private school. Neither father of the prosecutrix nor prosecutrix has stated that she had studied in the aforesaid school or the aforesaid date of birth recorded by parents of the prosecutrix. There is nothing on record to show the basis on which the aforesaid entry was made. In the aforesaid circumstances, learned trial court dealing all aspects with regard to the evidence of age of the prosecutrix in paragraphs 20 to 27 of the judgment, discarding the aforesaid entry with regard to date of birth of the prosecutrix in school record. On the basis of medical evidence Dr.C.S. Jain (PW-4) based on ossification test held that age of the prosecutrix may be more than 18 years at the time of incident. The learned trial court in the aforesaid circumstances has not committed any violation of the law laid down by the Hon'ble Apex Court in the Jarnail Singh's case (supra) with regard to determination of age of the prosecutrix. As the learned trial court has firstly considered the evidence with regard to school entry record at the time of st admission of prosecutrix in Class 1 but the entry has not been found to be proved in accordance with the law. Therefore, in absence of other evidence, the learned trial court has considered report of the medical expert based on ossification test, which is in accordance with the Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007. In the aforesaid judgment, the learned Apex court has not laid down that mere production of school entry record it will be deemed to be proved. The entry of the record have to be proved in accordance with the provision of section 35 of the Indian Evidence Act. As no such step have been taken by the prosecution during the trial, therefore, school entry record Ex.P-2 has been found to be not proved and learned trial court has not committed any legal or factual error. The learned trial court has rightly came to the conclusion that prosecution has failed to prove the age of the prosecutrix below 18 years beyond reasonable doubt.
6. The aforesaid finding of the learned trial court is based on matriculation appreciation of evidence and prima facie does not appear to be illegal, improper or contrary to law. Hence it cannot be said that prima facie learned trial court has committed any error in coming to the conclusion of finding of acquittal of the respondent no.1 of the offence punishable under section 363, 366 of the IPC.
7. In view of the aforesaid discussion, prima facie there is no ground to grant leave to appeal against the judgment of the acquittal of respondent no.1. Hence the applicantâs application being devoid of merit deserves to be dismissed. Accordingly, the application is dismissed.
(J. P. GUPTA) JUDGE tarun