Madhya Pradesh High Court
Hemendrasingh vs The State Of Madhya Pradesh on 29 June, 2022
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
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Cr.Appeal No.5118/2019 & 5247/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 29th OF JUNE, 2022
CRIMINAL APPEAL No. 5118 of 2019
Between:-
HEMENDRASINGH S/O MEHTABSINGH , AGED ABOUT 30 YEARS,
VILLAGE BHOGANWA SIPANI, P.S. SANAWAD, DISTT. KHARGONE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI NILESH DAVE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THRU. P.S. SANAWAD, DISTT. KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAHUL SOLANKI, GOVT. ADVOCATE)
CRIMINAL APPEAL No. 5247 of 2019
Between:-
AJAY S/O SHRI NANAJI , AGED ABOUT 21 YEARS, VILLAGE
MEHGAON (BHOGAWA) SIPANI, P.S. SANAWAD, (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI RAJESH YADAV)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH P.S. SANAWAD (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAHUL SOLANKI, GOVT. ADVOCATE)
Reserved on: 07.04.2022
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Cr.Appeal No.5118/2019 & 5247/2019
Regard being had to the similitude of the controversy involved
in CRA No.5118/2019 and 5247/2019, they are being disposed of by
this common order.
These appeals coming on for judgment this day, Hon'ble Shri
Justice Satyendra Kumar Singh passed the following:
JUDGMENT
Satyendra Kumar Singh, J., Appellants have preferred these appeals 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 10.05.2019 passed by the Court of II Additional Sessions Judge, Barwah, West Nimar (MP) in ST No.433/2016, whereby appellant- Hemendra Singh and appellant Ajay have been convicted and sentenced them as follows:-
CONVICTION SENTENCE
Name of Section Act Imprisonment Fine Imprisonme
appellants nt in lieu of
fine
Ajay 376(2)(N) IPC R.I. For 10 2,000/- 4 months
(i) years
5(l)/6 POCSO - - -
Himendra 376(2)(I) IPC R.I. For 10 2,000/- 4 months
years
3/4 POCSO - - -
2. The prosecution case in brief is as follows:
(i) on 05.12.2015 minor prosecutrix aged about 15 years made a
complaint to the police to the effect that she and appellants- Hemendra 3 Cr.Appeal No.5118/2019 & 5247/2019 and Ajay all are resident of same village- Mehgaon. About four months ago, appellant- Hemendra's wife Ritu who was prosecutrix's neighbour, called the prosecutrix at her house where appellant Ajay was already present, Ritu thereafter went from there closing the door of her house from outside and then appellant- Ajay forcefully committed sexual intercourse with the prosecutrix and threatened her, if she discloses about the incident to anyone, he will defame her. After about four days of the aforesaid incident, appellant- Hemendra called the prosecutrix and he also forcefully committed sexual intercourse with her and threatening her that he knew what appellant- Ajay did with her and he will disclose about the incident to everybody. Thereafter, appellant- Ajay again committed rape upon her for 3-4 times. About two days before, prosecutrix narrated the incident to her father and then came with him to Police Station Sanawad and made oral complaint against appellants and co-accused Ritu.
(ii) SI Mikita Chouhan on the basis of aforesaid complaint lodged FIR (Ex.P-1) against the appellants and co-accused Ritu at Police Station Sanawad, Khargone, recorded the statement of the prosecutrix as well as her parents. Vide letter (Ex.P-6), she sent the prosecutrix to Civil Hospital, Sanawad for medical examination where Dr. Hansa Patidar medically examined her and prepared MLC report (Ex.P-6). She 4 Cr.Appeal No.5118/2019 & 5247/2019 collected and preserved prosecutrix's vaginal slide and sealed the same alongwith her pubic hair and under garments.
(iii) ASI Sanjeev Patil went to the place of incident and prepared spot map (Ex.P-3), seized the scholar register of Baba Ambedkar Mandir School, Bhogva Sipani with regard to age of the prosecutrix as per seizure memo (Ex.P-5). He arrested appellant Ajay as per arrest memo (Ex.P-7) and vide letter (Ex.P-8) sent him to Civil Hospital, Sanawad for medical examination where Dr. Abhishek Mukati examined him and prepared MLC report. He collected and preserved his semen slide and sealed the same alongwith his under garments.
(iv) ASI Dinesh Kushwaha arrested appellant Hemendra as per arrest memo (Ex.P-22) and recorded his memorandum statement (Ex.P-23) and on the basis of which seized a micromax mobile (Article-1) bearing Sim No.9977661912 as per seizure memo (Ex.P-24) and vide letter (Ex.P-25) sent him for medical examination. ASI Dinesh Kushwaha vide letter (Ex.P-27) sent all the seized articles for forensic examination. He obtained CDR of the call details of appellant Hemendra and after completion of investigation, filed the charge sheet before the Court of Judicial Magistrate First Class, Sanawad, who committed the case to the Court of Additional Sessions Judge, Barwah, West Nimar.
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Cr.Appeal No.5118/2019 & 5247/2019
3. Learned trial Court considering the material prima-facie available on record framed charges u/S 376, 376(2)(I), 376(2)(N)(i), 342 of IPC and Section 3/4 and 5(L)/6 of the Protection of Children from Sexual Offences [in short 'POCSO Act'] against the appellants and co-accused Ritu who abjured guilt and prayed for trial.
4. Learned trial Court after appreciating the oral as well as documentary evidence available on record, acquitted the co-accused Ritu from all the charges, while convicted appellant- Ajay for the offences punishable under Sections u/S 5(L)/6 of POCSO Act and 376(2)(N)(i) of IPC and appellant- Hemendra for the offences punishable under Section u/S 3/4 of POCSO Act and 376(2)(I) of IPC and in view of the provisions of Section 42 of POCSO Act sentenced them as stated in para 1 of the judgment. Being aggrieved by the said judgment of conviction and order of sentence, appellants have preferred this appeal for setting aside the impugned judgment and discharging them from the aforesaid charges framed against them.
5. Learned counsel for the appellant- Hemendra Singh submits that prosecution has failed to prove the fact that prosecutrix was below 18 years of age. She nowhere stated that on which date and where appellant committed rape upon her. She was having affair with co- accused- Ajay and on 22.11.2015, appellant saw both of them in 6 Cr.Appeal No.5118/2019 & 5247/2019 compromising position at Vishnu Gurjar's house and had taken letter (Ex.D-1) written by the prosecutrix to the co-accused Ajay alongwith mobile chip of their conversation recording from the co-accused Ajay, due to which prosecutrix lodged false and fabricated report against him. FIR is hopelessly delayed and the whole prosecution story is doubtful even then learned trial Court has convicted the appellant. Thus, impugned judgment of conviction and order of sentence deserves to be set aside.
Learned counsel for the appellant Ajay submits that prosecution has failed to prove the fact that prosecutrix was below 18 years of age. Prosecutrix neither in her FIR nor in her statement recorded during trial has stated the specific dates of the incident. She has nowhere stated that after the first incident when and where she was subjected to forceful intercourse with the appellant. There was a family dispute between the appellant and prosecutrix, due to which he has been falsely implicated in the matter. The whole prosecution story is doubtful. Learned trial Court has committed legal error while appreciating the evidence available on record. Thus, impugned judgment of conviction and order of sentence deserves to be set aside and appellants may be acquitted from the charges framed against them.
6. Per contra, learned counsel for the respondent/State while 7 Cr.Appeal No.5118/2019 & 5247/2019 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 appellants deserves to be dismissed.
7. We have heard the parties at length and perused the record.
8. Prosecution case is mainly based on the statements of the prosecutrix, therefore, first of all it has to be seen whether she was minor i.e. below 18 years of age at the time of incident. Prosecutrix (PW-1) as well as her father (PW-3) had deposed that prosecutrix's date of birth is 28.08.2000 and on the date of incident, she was below 18 years of age. In this regard, prosecution has examined Kamal Bhalse (PW-6), Pradhan Adhyapak, Baba Ambedkar Mandir School, Bhogva Sipani who supported their above statements and deposed that as per school scholar register (Ex.P-5) prosecutrix's date of birth is 28.08.2000 but he in his cross-examination deposed that he was posed in the said school since 2014 and was not aware about the fact that on what basis prosecutrix's date of birth was written as 28.08.2000 in the school scholar register. Prosecutrix (PW-1) deposed that her date of birth was written on the basis of 'pagaliya' sent by her metarnal uncle on her birth. Her father (PW-3) has also stated so but no such 8 Cr.Appeal No.5118/2019 & 5247/2019 'pagaliya' has been produced on record. Prosecutrix's father in para 4 of his cross-examination admitted that he had not submitted prosecutrix's birth certificate or any other documents at the time of her admission in the school.
9. Prosecutrix(PW-1) in para 18 of her cross-examination admitted that on her Adhar Card, her date of birth is written as 01.01.2000. Dr. Hansa Patidar (PW-9) although deposed that after the incident during medical examination of the prosecutrix, she found her dentition as follows:-
Dentition - 2/1/2/3 2/1/2/3 But she specifically deposed that her secondary sexual characters were well developed. In the aforesaid circumstances, considering the law laid down by Hon'ble Supreme Court in the case of Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714, this fact cannot be said to be proved beyond reasonable doubt that prosecutrix was below 18 years of age at the time of incident. The relevant paras have held 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 9 Cr.Appeal No.5118/2019 & 5247/2019 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.
20. 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.
21. 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 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."
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 Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 10 Cr.Appeal No.5118/2019 & 5247/2019 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 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 11 Cr.Appeal No.5118/2019 & 5247/2019 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 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 12 Cr.Appeal No.5118/2019 & 5247/2019 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)
10. So far as allegations made against the appellants are concerned from the evidence produced on record, it is admitted fact that appellant- Hemendra's house is situated infront of prosecutrix's house and in between their houses, there is a public road and if someone screamed loudly in the appellant's house, it will be heard from outside; as admitted by Bharat Singh (PW-8).
11. Prosecutrix (PW-1) as per her FIR (Ex.P-1) in her statement recorded on 13.04.2017 deposed that about four months prior to her report, appellant- Hemendra's wife- Ritu called her at her house where appellant- Ajay was already present. She deposed that when she entered into the room, appellant- Hemendra's wife Ritu went from there closing the door of the room from outside and then appellant- Ajay forcefully committed sexual intercourse with her. She further deposed that appellant-Ajay thereafter again committed rape upon her thrice but she neither in her FIR nor in her statement recorded during trial has stated about the detail of aforesaid act of appellant- Ajay that when and where 13 Cr.Appeal No.5118/2019 & 5247/2019 and at what time, the said acts were committed with her. Admittedly prosecutrix (PW-1) did not disclose the aforesaid incident to anyone for about four months. Therefore, without any corroboration only on the basis of her aforesaid statement, allegations alleged against the appellant - Ajay cannot be said to be proved beyond reasonable doubt.
12. Prosecutrix(PW-1) as per FIR (Ex.P-1) deposed against the appellant - Hemendra also that after about four days of the first incident, he called her at his house and committed rape upon her saying that he knew what appellant- Ajay did with her and he will disclose the incident to everybody. She in her statement recorded under Section 164 of Cr.P.C., stated that appellant Himendra did the same act with her repeatedly but she nowhere stated about the specific date, time and place where she was subjected to forceful sexual intercourse by the appellant- Hemendra. She in Para 24 of her cross-examination admitted that in the appellant- Hemendra's house, apart from his wife Ritu, his brother, sister-in-law, father-in-law and mother-in-law were also living with them. She in Para 29 of her cross-examination admitted that after the first incident, she did not went to appellant- Himendra's house as there was no occasion to go there. All the other prosecution witnesses namely; Mohanlal (PW-2), Narayan (PW-3), Bhagwatbai (PW-4) and Surajlal (PW-5) are hearsay witnesses and stated about the incident 14 Cr.Appeal No.5118/2019 & 5247/2019 only on the basis of information given either by the prosecutrix or by her father. In these circumstances, where admittedly FIR was lodged after about four months of the incident and neither the date, time nor place of the incident have been mentioned, only on the basis of uncorroborated prosecutrix's statements, it is not safe to hold this appellant also guilty for the alleged offences as the contents of letter (Ex.D-1) submitted by him in his defence have been admitted by Mohanlal (PW-2), uncle of the prosecutrix.
13. In the light of the aforesaid discussion, this Court has no hesitation to hold that prosecution has failed to prove the guilt against appellants beyond reasonable doubt. Hence, conviction of the appellants cannot be upheld and the appeals filed by the appellants deserve to be allowed. Accordingly, this Court passes the following order:
(i) Criminal Appeals No.5118/2019 and 5247/2019 filed by the appellant - Ajay and Hemendra is allowed.
(ii) The judgment of conviction and order of sentence dated 10.05.2019 passed in Case No.100433/2016 by which appellant- Ajay has been convicted for the offences punishable under Sections 376(2)(N)(i) of IPC and u/S 5(l)/6 of POCSO Act and appellant- Himendra has been 15 Cr.Appeal No.5118/2019 & 5247/2019 convicted for the offences punishable under Section 376(2)(I) of IPC and u/S 3/4 of POCSO Act and both were sentenced as stated in para 1 of the judgment is hereby set aside.
(iii) Appellants be set at liberty, if not required in any other case.
(iv) Fine amount(if any) deposited by the appellants 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 2022.06.29 10:20:54 +05'30'