Antram Kanwar vs State
2023 Latest Caselaw 517 Chatt

                                       1

                                                                        NAFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRA No. 1269 of 1999
                         Reserved on : 16.11.2022
                         Delivered on : 25.01.2023

    Antram Kanwar S/o Nansay Kanwar, R/o Village Amatoili Kotba, P.S. -
     Bagbahar, District - Raigarh , M.P. (Now C.G.)

                                                                  ---- Appellant

                                   Versus

    The State of M.P. Through P.S. Bagbahar, District - Raigarh, M.P. (Now
     C.G.)

                                                              ---- Respondent

For Appellant : Mr. Krishna Tandon on behalf of Mr. Amit Sharma, Advocates For State : Mr. Praveen Shrivastava, P. L.

Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment

1. The appellant by way of this appeal has challenged the judgment of conviction dated 12.04.1999 passed by the Second Additional Sessions Judge, Raigarh (M.P.) in Sessions Trial No. 143/1996 whereby and whereunder, he has been convicted and sentenced as under :-

       Conviction U/s.       Sentence RI.     Fine           In    default     of
                                                             payment of fine

       363 of the Indian 7 Years              Rs.500/-       2 months RI
       Penal Code

       366(d) of the Indian 7 Years           Rs.500/-       2 months RI
       Penal Code

       376 of the Indian 7 Years              Rs.500/-       2 months RI


    Penal Code


   All the sentences to run concurrently.

2. In brief, the prosecution story is that the victim was residing with her father at village - Amatoili and on the date of incident i.e. on 24.04.1996 at about 12 pm when her brother Sundar Sai came to home, then the victim was not available. He made search of the victim, then Gorakhnath told him that he has seen the victim along with the appellant below Mahua tree. He went there, but the victim was not found. He lodged report before the police station. On the date of incident the victim was aged about 16 years. The case of the prosecution is that the appellant had allured the victim and has taken the victim to village Gahira where he kept the victim for 9 days, then he came back to Amatoili and kept her in his house. During this period the appellant committed forcible sexual intercourse with the victim. The victim was medically examined and after completion of the investigation, a charge sheet was filed against him. He abjured the charges and faced the trial.

3. To bring home the guilt of the appellant, the prosecution examined as many as 13 witnesses namely PW/1 Shivratandas, PW/2 Dr. A. Minj, PW/3 Dr. V,D, Paswan, PW/4 Laxmansingh Thakur, PW/5 Bulu, PW/6 Partas Toppo, constable PW/7 B.L. Kehri, PW/8 Sundarsai, , brother of the victim PW/9 Gorakhnath, PW/10 Victim, PW/11 Agarsai, PW/12 Ganjharam and PW/13 Kasil Minj, Assistant Subinspector. The appellant was examined under Section 313 Cr.P.C and he examined DW/1 Satyanarayan Das who has stated that because of rivalry between father of the victim and father of the appellant, the appellant has been falsely implicated.

4. Learned trial Court after appreciating the evidence and materials on record has held that victim was minor on the date of incident when the appellant has taken her, therefore, the offence against the appellant is proved and accordingly he was convicted for the offence punishable under Sections 363, 366(d) and 376 of the IPC.

5. The appellant being aggrieved with the conviction has preferred present appeal under Section 374(2) of IPC.

6. The prosecution to prove the age of the victim has exhibited birth register of Police Station, Bagbahra as Ex.P/8 and Kotwari Register, Ex.P/14 wherein the date of birth of the victim has been recorded as 13.09.1979. but the prosecution has not examined Kotwar to prove the date of birth of the victim and learned trial Court on the basis of evidence of PW/6 Partas Toppo who is police constable and these documents has held that date of birth of the victim is 13.09.1979 and accordingly on the date of incident she was a minor girl. The learned trial Court has also recorded that since the victim was minor therefore, her consent has no relevancy, as such, the charges levelled against the appellant are found proved.

7. Learned counsel for the appellant would submit that date of birth of the victim has not been proved as per Section 35 of the Evidence Act and the victim was a consenting party, therefore, finding recorded by the learned trial Court with regard to guilt of the appellant is based on perverse finding. He would submit that Kotwar register has been exhibited before the trial Court, but Kotwar who has made entry in the register has not been examined before the trial Court to prove the entry made in the register, therefore, Kotwar register has not been proved as per Section 35 of the Evidence Act. He would refer to the judgment passed by the Hon'ble Supreme Court in case of Rajak Mohammad vs. State of Himachal Pradesh 1 in which the Hon'ble Supreme Court has held as under :-

"9. While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.

10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged 1 (2018) 9 SCC 248

occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."

8. He would further refer to the judgment passed by the Hon'ble Supreme Court in case of Maheshwar Tigga vs. State of Jharkhand 2 in which the Hon'ble Supreme Court has held as under :-

"13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury.

14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.

18. We have given our thoughtful consideration to the facts and circumstances of the present case and are of the considered opinion that the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties. The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or 2 (2020) 10 SCC 108

in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant's family was always very nice to her."

9. He would further submit that from the evidence it is quite vivid that the victim was a consenting party and her age has not been proved, therefore, the conviction passed by the learned trial Court deserves to be set aside and the appellant deserves to be acquitted.

10. On the other hand, learned State counsel would submit that the appellant has rightly been convicted after appreciating the facts and materials available on record, learned trial Court has rightly held that since the victim was a minor girl the offence against the appellant is proved, therefore, the appeal deserves to be dismissed.

11. I have heard learned counsel for the appellant and State and also perused the record with utmost satisfaction.

12. The victim in her examination-in-chief has stated that she was in love affair with the appellant and he has done sexual intercourse with her consent. She has also stated that she is not aware of her date of birth. She has also admitted in Court that they are two brothers and two sisters among whom she is the youngest one. She has also stated that they went to village Ludeg walking which is about 10 km from Kotwa, during this time she has not raised any objection. From Ludeg they went to Patthalgaon by bus where she decided that they should go to a place to live together where their family members could not access so that they could live peacefully. Thereafter, on her advice they went to village Lainlunga in the house of her elder cousin brother Agarsai. When her sister-in-law w/o Agarsai asked why they have come then she has said that she had married with the appellant and brought him, then her grandfather and sister-in-law allowed them to stay there. The appellant and the victim remained in one room where the appellant did sexual intercourse with her. She has stated that she did not raise any objection for doing sexual intercourse by the appellant. She has also stated that she has not sustained any injury. She has also stated that her mother and father are 80 year old,

as such, her age may be presently 22 years. She has also stated that when the appellant did sexual intercourse with her his semen did not fall on her clothes and undergarment. She has also admitted that there was dispute between her father and appellant's father.

13. From the evidence brought on record, it is quite vivid that the victim was subjected to medical examination by Dr. A. Minj, PW/2 wherein she has stated that the victim was habitual to sexual intercourse, only 4-5 days back she might have delivered baby. She has also sent undergarment of victim having stains of seminal fluid for examination to FSL. Similarly, undergarment of the accused was also sent to FSL, but no sign of human sperm was found on the article A "petticoat" of the victim.

14. PW/8 Sundar Sai, brother of the victim in his examination-in-chief has stated that he is 35 year old on the date of recording of statement i.e. 20.04.1998, there was 3 years of age difference between him and his younger brothers and the victim was 1½ years younger than his brothers. Thus, it cannot be said that she was minor on the date of incident.

15. Now this court has to examine whether date of birth recorded in the Kotwar register can be considered for determining the age of the victim without examination the writer of the document i.e. Kotwar.

16. It is well settled legal position that, entry in the Kotwar Register cannot be relied upon unless its probate value in terms of provisions of Section 35 of the Evidence Act is proved. Section 35 of the Evidence Act lays down that in the entry in any public or any other official book, register or record stating a fact in issue or relevant fact in issue or relevant fact made by a public servant in the discharge of his official duty specially enjoyed by the law of the country itself are relevant. Hon'ble the Supreme Court in Babloo Pasi Vs. State of Jharkhand & another 3 has held at paragraph 28 as under:-

"28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public

3 (2008) 13 SCC 133

servant in discharge of his official duties, or in performance of his duty especially 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. (See: Birad Mal Singhvi Vs. Anand Purohit [1988 Supp SCC 604])."

17. Hon'ble the Supreme Court in case of Birad Mal Singhvi Vs. Anand Purohit 4, has held at paragraph 14 as under:-

"14. ..........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, because 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 already 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 aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or some one 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 scholar's 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 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 in 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 entry will have no evidentiary value.

Merely because the documents Exs. 8, 9, 1(). 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 HukmiChand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish

4 1988 (Supp) SCC 604

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 vouch safe 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."

18. Hon'ble the Supreme Court in Manoj Alias Monu Alias Vishal Chaudhary Vs. State of Haryana & another 5, has considered the said judgment and has held at paragraph 20 as under:-

"20.The Court held as under: (Jyoti Prakash Rai case (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796) "12. The 2000 Act is indisputably a beneficial legislation. Principles of beneficial legislation, however, are to be applied only for the purpose of interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not. Whether an offender was a juvenile on the date of commission of the offence or not is essentially a question of fact which is required to be determined on the basis of the materials brought on record by the parties. In the absence of any evidence which is relevant for the said purpose as envisaged under Section 35 of the Evidence Act, the same must be determined keeping in view the factual matrix involved in each case. For the said purpose, not only relevant materials are required to be considered, the orders passed by the court on earlier occasions would also be relevant."

19. In the light of the above legal position it is quite vivid that the Kotwar register Ex.P/14 has been proved in accordance with law. In the case at hand Kotwar register has been exhibited, but Kotwar who has made entry has not been examined, therefore, it cannot be said that the prosecution has been able to prove the case of the age of the victim is below 18 years. Document Ex.P-12 is record of Police Station which is not a statutory record for proving the age of the victim, therefore, this Court finds that the finding of the trial Court that at the time of incident the victim was below 18 years of age deserves to be set aside.

20. So far as the allegations of offence under Section 363, 366 and 376 of the IPC are concerned, it has been proved beyond all reasonable

5 (2022) 6 SCC 187

doubts that the appellant has not acted anything against her consent. From her evidence which has been referred to in the foregoing paragraphs, it would clearly demonstrate that the victim was a consenting party, she never raised objection during intercourse and in fact she has advised the appellant to move a place where they can stay peacefully which clearly proves that the victim was a consenting party and since the consent of the victim has been proved beyond all all reasonable doubt and the prosecutrix was below 18 years at the time of incident, therefore, the judgment of the trial Court convicting the appellant for commission of offence under Sections 363, 366(d) and 376 IPC suffers from perversity and illegality which deserves to be interfered by this Court.

21. Accordingly, the instant appeal is allowed. The judgment of conviction and order of sentence passed by the learned trial Court is set aside. The appellant is acquitted from the charges under Sections 363, 366(d) and 376 IPC against the present appellant.

22. The appellant is reported to be on bail. His bail bonds stand discharged in view of the provisions of Section 437-A, Cr.P.C. The fine amount, if any, paid be refunded to the appellant forthwith.

Sd/-

(Narendra Kumar Vyas) Judge deshmukh