Parkhit @ Parikshit And Anr vs The State Of Madhya Pradesh
2022 Latest Caselaw 4153 Chatt

                                      1



                                                                      NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                          CRA No.3306 of 1999
                   Judgment reserved on : 13.06.2022
                  Judgment delivered on : 01.07.2022
     1. Parkhit @ Parikshit, S/o Ganpat @ Galpet Kunwar, aged about 20
        years
     2. Ganpat @ Galpet Kunwar, S/o Kanshi Ram kunwar, aged about 48
        years
       Both resident of village-Phulikunda, Police Station-Lailunga District-
       Raigarh (CG)
                                                              ---- Appellants
                                  Versus
      The State of Madhya Pradesh, through the District Magistrate,
       Raigarh (M.P.)
                                                           ---- Respondent

For Appellants Mr. Shobhit Koshta, Advocate For Respondent Mr. Lalit Jangde, Dy. GA

Hon'ble Justice Smt. Rajani Dubey CAV Order

1. The instant appeal is directed against the judgment of conviction

and sentence dated 30.11.1999 passed by the learned 2 nd

Additional Session Judge, Raigarh in ST No.123/1997, whereby

the appellant has been convicted and sentenced as under:-

        Sr.   Accused         Conviction u/S       Sentence
        No.

1. Appellant No.1 Section 363 of IPC RI for 7 years and fine of Rs.1,000/-. In default of fine, additional RI for 3 months

2. Appellant No.1 Section 366 of IPC RI for 10 years and fine of Rs.1,000/-. In default of fine, additional RI for 3 months

3. Appellant No.1 Section 376 of IPC RI for 10 years and fine of Rs.1,000/-. In default of fine, additional RI for 3 months

4. Appellant No.2 Section 212 of IPC RI for 3 years and fine of Rs.5,000/-. In default of fine, additional RI for 6 months

2. Brief facts of the case are that on 31.03.1997 at about 7-8 pm, the

appellant No.1 came near the house of prosecutrix and invited her

to live with him and promised to marry her. The prosecutrix

accompanied the appellant No.1 to his house and thereafter they

went to the house of his maternal uncle Gada Rai at Village

Rumkera. At this place, the appellant No.1 committed sexual

intercourse with the prosecutrix and on suggestions of Gada Rai,

they came to Village Phulikunda, where they stayed for 2-3 days.

The appellant No.2, father of the appellant No.1, told the appellant

No.1 that since he has married with the prosecutrix, he can reside

in a separate room with her. In the meanwhile, father of the

prosecutrix started search of his daughter, on which one Nanhi

Ram informed him that she has been abducted by the appellant

No.1. On search being made, the prosecutrix was recovered from

the house of the appellants. Thereafter, PW-2 Balesh, father of the

prosecutrix, lodged FIR (Ex-P/5) on 07.04.1997 against the

appellants. After completion of investigation, charge sheet was filed

against the appellants.

3. The learned Trial Court framed charges against the appellant No.1

under Sections 363, 366 & 376 of IPC and under Section 212 of

IPC against the appellant No.2.

4. To prove the guilt of the appellants, the prosecution examined as

many as 19 witnesses. The statement of accused under Section

313 of CrPC was also recorded. The appellants exhibited two

documents in their defence and examined only one witness namely

Amar Singh. After appreciating the oral and documentary evidence

available on record, the Trial Court convicted the appellant as

mentioned in para 1 of this judgment.

5. Learned counsel for the appellant submits that the impugned

judgment of conviction and sentence is contrary to law and

evidence available on record. The Trial Court committed grave

error of law in holding that the prosecutrix is less than 16 years of

age. The school certificate is not the reliable piece of evidence for

determining the age of the prosecutrix. It is clear from the conduct

of the prosecutrix that no offence under Sections 363, 366 & 376 of

IPC is made out against the appellant. The entire prosecution case

is false and concocted. The FIR is delayed and the reason for

delay has not been explained by the prosecution. The FSL report is

also suspicious, because it was done after 7 days of the alleged

incident. The conviction of appellant No.2 is also utterly perverse

and illegal. No offence under Section 212 of IPC is made out

against him. The parties belong to Scheduled Caste Community

where they live liberal life style in relation to marriages and

therefore no offence is made out against the appellants. He further

submits that before the Trial Court, PW-4 Ghasiya, PW-8 Gada Rai

and PW-16 Bandhan have turned hostile and not supported the

prosecution case. Thus, the prosecution has failed to prove its

case against the appellants beyond all reasonable doubt, so the

judgment of conviction and order of sentence is liable to be set

aside. He has placed his reliance on the judgments rendered by

the Hon'ble Supreme Court in the matters of State of Karnataka

vs F. Nataraj1, Santosh Prasad alias Santosh Kumar vs State 1 (2015) 16 SCC 752

of Bihar2 and Alamelu and another vs State represented by

Inspector of Police3.

6. On the other hand, learned State counsel supports the impugned

judgment of conviction and order of sentence and submits that the

prosecution has proved its case beyond reasonable doubt,

therefore, the appeal deserves to be dismissed.

7. Heard learned counsel for the parties and perused the material

available on record.

8. The Trial Court finds that at the time of incident, the prosecutrix

was below 16 years of age. PW-12 Bhagwat Prasad Panda stated

in his examination-in-chief that as per school register, date of birth

of the prosecutrix is 25.10.1981 vide Ex-P/12, which was issued on

the basis of original register. The mark sheet of the prosecutrix is

Ex-P/13, in which also, the age of the prosecutrix is mentioned as

25.10.1981. PW-12 Bhagwat Prasad Panda only stated that in

dakhil kharij register, date of birth of the prosecutrix is 25.10.1981

and in mark sheet (Ex-P/13) also, date of birth of the prosecutrix is

25.10.1981, but he did not state anything that on what basis this

entry was made. The prosecutrix (PW-3) stated in para 7 that at

the time of incident, she was aged about 15 years. Dr. Preeti

Singhal (PW-19) stated that according to her, the age of the

prosecutrix is about 14-16 years. No ossification test was done in

this case. The father of the prosecutrix (PW-2) did not state about

date of birth of the prosecutrix. He stated in para 8 of his

examination-in-chief that "jftLVj ds vuqlkj yM+dh dh mej 15 lky 5

ekg dk FkkA mDr ckr gesa njksxk us jftLVj ns[kdj crk;k FkkA"

2    (2020) 3 SCC 443
3    (2011) 2 SCC 385

9. The Hon'ble Apex Court in the matter of Alamelu (supra) held in

paras 40 & 42 as under:-

"40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:-

"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined......................................................... ............... ..........................................................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 documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. 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 mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."

10. Applying the aforesaid principle laid down by the Apex Court in the

present case as well, it is clear that in the case in hand, the

Headmaster of the school, PW-12 Bhagwat Prasad did not state

that on what basis, the entry in school register was made by him

regarding the age of the prosecutrix, as such as per the guidelines

of Hon'ble Apex Court in Alamelu (supra), the register has no

evidentiary value unless the person who made the entry of date of

birth is examined. Merely because all related documents have

been exhibited, it does not mean that the contents of documents

are also proved. The father of the prosecutrix did not state anything

that on what basis date of birth was written in school register and

headmaster (PW-12) also did not state that on what basis, entry

was made in the school register. Thus, the prosecution has failed

to prove the age of the prosecutrix in the present case.

11. The conduct of the prosecutrix clearly reflects that she is the

consenting party and she had gone with the appellant No.1 on her

own will. In her examination-in-chief, she stated that the appellant

No.1 abducted her and committed sexual intercourse without her

consent, but in cross-examination, she stated in para 6 that "geyksx

:edsjk ls ySywaxk x;s FksA Fkkus esa x, FksA eSa Fkkuk ySywaxk esa ?kVuk ds ckjs

esa crk;h Fkh iqfyl okys fy[ks fd ugha eSa ugh tkurh ml le; vfHk;qDr

x.k esjs lkFk Fks muds crk;s vuqlkj eSus cksyh Fkh fd jkthukek ls vk;s

FksA dktwokM+h :edsjk ds utnhd esa gSA eq>s ls ijf[kr diM++k [kqyok;k

FkkA ijf[kr }kjk cykRdkj djrs le; eSus jksdus dh dksf'kl dh Fkh ijarq

ugh jksd ikbZ Fkh A eSus ijf[kr dks euk fd;k Fkk dksbZ uksp [klksV ugh

fd;k FkkA ijf[kr }kjk laHkksx djus ij eq>s [kjkc yxk FkkA ySywaxk Fkkuk

esjs firkth ugh x, Fks okn esa x, FksA " In para 7, she stated that "eS

frgk: /kfl;k yksxksa ds iqNus ij ;g crk;h Fkh fd thus [kkus ds fy,

vk;kh gqW ijarq ;g ckr esa blfy;s crk;h Fkh fd ijf[kr eq>s vkus tkus ugh

nsrk FkkA" In para 10, she stated that "eS ijf[kr ds [khpus ij mlds

lkFk iSny py nh FkhA iSny :edsjk x;s Fks diM+k <wls <wls ys x;k FkkA

taxy ds jkLrs esa fudky fn;k FkkA :edsjk ls eSa cl esa vk;h FkhA cl esa

cgqr ls yksx FksA eSus cl esa fdlh dks ?kVuk ds lac/k esa ugh crk;h FkhA"

12. The learned Trial Court convicted the appellants on the ground that

the prosecutrix was below 16 years of age and the appellant No.1

committed sexual intercourse with her without her consent.

13. The Honble Apex Court in the matter of Santosh Prasad (supra)

held in paras 5.2, 5.4.2 & 5.4.3 as under:-

"5.2 From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 - prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh - Medical Officer and PW7 - Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 - Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination- in-chief). However, in the cross- examination, she has stated that there was no physical or pathological evidence of rape.

5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:

"22 In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant

would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

5.4.3 In the case of Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality."

14. The Hon'ble Apex Court in F. Nataraj (supra) held in para 15 as

under:-

"15. Learned counsel for the respondent relied upon the case of Radhu v. State of M.P., (2007) 12 SCC 57, wherein this Court had laid down the principle that a conviction of rape can be based on the uncorroborated testimony of the prosecutrix and even the absence of injuries on the private parts of the victim will not falsify the case of rape, but at the same time, the Courts must

bear in mind that the question whether there was rape or not would depend ultimately on the facts and circumstances of each case."

15. In the case in hand, the prosecutrix admitted that the Police

recorded her 161 CrPC statement vide Ex-D/2, but she denied all

suggestions of defence before the Court and stated that " eSus iqfyl

dks vius c;ku izn'kZ Mh &2 esa ;g ugh crk;k Fkh fd djhc ,d o"kZ

&&&&eq>ls Hkh ckrphr djrk Fkk] dk c;ku eSus iqfyl dks ugh fn;k FkkA

iqfyl us dSls fy[k yh eS bldk dkj.k ugh crk ldrk gwaA eSus iqfyl dks

izn'kZ Mh &2 esa ;g c;ku ugh fn;k Fkk fd esjs eqga esa &&& fpYyk ugh

ldh] dk c;ku iqfyl dks ugh fn;k FkkA iqfyl us dSls fy[k yh eS bldk

dkj.k ugh crk ldrk gwaA ;g ckr lgh gS fd eq>s dktqckM+h okyh laHkksx

dh ?kVuk dh fnu rkfj[k le; ;kn ugh gSA ;g dguk xyr gS fd eS

ijf[kr }kjk laHkksx djus okyh ckr igyh ckj vnkyr esa crk jgk gw fdlh

dks ugh crk;k FkkA" Thus, it is clear from the statement of prosecutrix

that there are material omissions and contradictions in her 161

CrPC statement (Ex-D/2) and court statement. The FSL report (Ex-

P/24) and statement of Dr. Preeti Singhal (PW-19) also do not

support the prosecution case. As per Dr. Preeti Singhal, hymen

was intact and no definite opinion can be given regarding rape and

its duration. The learned Trial Court believed on FSL report. It is

also to be taken into account that the incident occurred on

31.03.1997 and the FIR was lodged on 07.04.1997, whereas the

prosecutrix was examined by the doctor on 09.04.1997.

16. It is clear from the FSL report (Ex-P/24) that in vaginal slide-B, no

seaman was found. It is also clear from the evidence of the

prosecutrix that she did not make any complaint, whereas she had

the opportunity on so many occasions to do so. Thus, it is

established that the prosecutrix had so many opportunities to

complain or run away, but she did not make any such effort. This

behavior of the prosecutrix clearly shows that she is a consenting

party. The age of the prosecutrix is also not proved that she was

below 16 years of age. As such, under these circumstances, the

prosecution has failed to prove its case beyond reasonable doubt

against the appellant No.1 under Sections 363, 366 & 376 of IPC

and so against the appellant No.2 as well under Section 212 of

IPC.

17. In view of the foregoing discussions and considering the entire

statement of the prosecutrix, the medical evidence available on

record as also the conduct of the prosecutrix, this Court has no

hesitation to say that the prosecutrix was a consenting party to the

act of the appellant No.1. Under these circumstances, the

appellants are definitely entitled to be acquitted of the charges

leveled against them by extending them benefit of doubt.

18. In the result, the appeal is allowed. The conviction of the

accused/appellants under Sections 363, 366, 376 & 212 of IPC

and sentenced imposed thereunder are hereby set aside. They are

acquitted of the said charges by extending them benefit of doubt.

The accused/appellants are on bail. Their bail bonds shall stand

discharged.

Sd/-

Rajani Dubey Judge Nirala