Madhya Pradesh High Court

Mohe Lal vs The State Of M.P. on 21 December, 2021

Author: Rajendra Kumar Srivastava

      THE HIGH COURT OF MADHYA PRADESH
        PRINCIPAL SEAT AT JABALPUR
     S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
                           Cr.A.No.2018/1998


                       Mohelal
                          Vs
                    The State of M.P.
_________________________________________________
       Shri Surendra Singh, learned Senior Advocate with
Shri A.K. Dubey, learned counsel for the appellant.
      Shri Lokesh Jain, learned P.L. for the respondent-State.

                              JUDGMENT

(21.12.2021)

The instant appeal under Section 374(2) of Criminal

Procedure Code has been filed by the appellant/accused being

aggrieved by the judgment and finding dated 01.09.1998 passed

by the learned Additional Sessions Judge, Beohari, District-

Shahdol in Session Trial No.40/1998, whereby the

appellant/accused has been convicted under Sections 376 (1), 363

and 366 of the IPC and awarded sentences undergo R.I. for 7

years, 3 years and 4 years of jail sentence with fine of Rs.500/-,

Rs. 250/- and Rs.250/- respectively. Default stipulations have

also been imposed by the trial Court. It has been directed by the

trial Court that all the sentences shall run concurrently.

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2. According to the case, on 08.12.1997,

prosecutrix (PW-1) aged about 15 years who is wife of

Rajesh (PW-2) lodged the FIR against the appellant/accused

mentioning therein that on 03.11.1997 at about 10:00 pm,

when she was going towards Shahdol, on the way, the

appellant met and took her to various places under

intimidation and committed sexual intercourse with her

forcibly. On 22.11.1997, appellant/accused took the

prosecutrix at Waidhan Court where he executed a marriage

certificate forcibly. Therefore, the police registered the FIR

(Ex.P/1) for offences under Sections 363, 366 and 376(1) of

IPC.

3. After completing the investigation, the police

filed the charge-sheet. The appellant/accused abjured his

guilt and claimed for trial, therefore, the trial Court

proceeded further and recorded the statements of 16

prosecution witnesses and also statement of

appellant/accused under Section 313 of the Cr.P.C.

4. After evaluating all the evidences adduced by

the parties, the trial Court found the appellant/accused guilty

for the offences punishable under Sections 376(1), 363 and

366 of IPC.

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5. Learned counsel for the appellant submits that

the judgment passed by the learned trial Court is bad in law

and deserves to be set aside. The learned trial Court did not

appreciate the evidence in proper way as there are material

contradictions and omissions available in the statements of

the prosecution witnesses. In fact, the prosecutrix is

consenting party. She was in love relationship with the

appellant and she accompanied him voluntarily. Learned

trial Court erred in holding that at the time of incident she

was minor. Father-in-law of prosecutrix i.e. PW-8 stated in

his statement that at the time of marriage, prosecutrix was

aged about 18 years. The prosecutrix herself denied her

minority at the time of incident. The police has collected the

school admission record of prosecutrix wherein her date of

birth is mentioned as 28.03.1982 but prosecution failed to

prove that on what basis the date was mentioned in said

father of prosecutrix i.e. PW-5 was unable to disclose her

date of birth, rather, he submitted that he marked

approximate date of birth of prosecutrix at that time. During

investigation, ossification test was also not performed by the

prosecution to ascertain the age of prosecutrix. The learned

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trial Court itself does not deny the consensual relationship

between the prosecutrix and appellant but merely on the

ground of prosecutrix being below 16 years, the trial Court

passed the order of conviction. The trial Court ignored the

fact that the date of birth of prosecutrix is disputed and in

such circumstances doubt of benefit ought to have been

given to accused only. Learned trial Court itself found that

the prosecutrix is residing with the appellant/accused in his

house. The cross-examination of the prosecutrix itself shows

that prosecutrix and appellant loved each other and she was

not happy with her husband. She also accepted in her cross-

examination that her husband was incapable to perform

cohabitation. The prosecutrix wandered with the appellant

at many places but she did not raise any alarm which shows

her consent. The family members of the prosecutrix were

keeping grudge with the appellant because prosecutrix loved

the appellant and annoying to which, this false case was

registered against him. There is no direct evidence against

the present appellant and therefore, appellant is entitled to

be acquitted. With the aforesaid, he prays for allowing this

appeal.

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6. On the other hand, learned P.L. for the

respondent-State opposes the submissions of appellant's

counsel submitting that the offences committed by the

appellant/accused are heinous in nature and therefore, the

trial Court has rightly convicted him. The prosecutrix

herself given her statement against the appellant/accused.

Therefore, the judgment passed by the trial Court does not

warrant any interference.

7. Heard and perused the record.

8. On perusal of impugned judgment, however, it

appears that the learned trial Court found a consensual

relationship between the prosecutrix and appellant but on

account of prosecutrix being minor and her consent is not

valid in the eye of law, the learned trial Court found the

appellant guilty for the offences aforesaid.

9. This Court has to see whether the learned trial

Court rightly determined the age of prosecutrix i.e. below

16 years or she was above 18 years on the day of incident ?

10. It appears from the judgment that to determine

the age of prosecutrix below 16 years, the learned trial

Court relied upon the school admission register of Class-I of

prosecutrix which is proved by PW-4 Jagdish Prasad Tiwari,

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Head Master of Government Middle School Shahdol. As per

the said document, the date of birth of prosecutrix is

28.03.1982 and thus, on the date of incident i.e. 03.11.1997,

she was below 16 years.

11. The learned counsel for the appellant

challenged the said finding on the following grounds:-

1. The prosecutrix herself accepted that she was major and married at the time of incident.

2. During examination, father of prosecutrix (PW-5), mother of prosecutrix (PW-9) and father-in- law of prosecutrix (PW-8) failed to disclose her specific date of birth.

3. The Head Master (PW-4) of school wherein the prosecutrix studied, was also unable to apprise the trial Court about the source of information regarding registration of date of birth of prosecutrix.

4. The prosecution did not perform ossification test of prosecutrix to determine the age.

12. On the issue of determination of age of minor,

the law laid down by the Hon'ble Supreme Court in the case

of Jarnail Singh v. State of Haryana reported in (2013) 7

SCC 263, holds the field and the relevant paras are quoted

hereinunder:-

"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules

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have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:

"12. Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the

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Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year,

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.

(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict

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with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.

24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the

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prosecutrix VW, PW 6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6 on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix VW, PW 6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6 had studied up to Class 3. Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records indicating that the prosecutrix VW, PW 6 was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW-

6."

13. On careful reading of aforesaid judgment, it is

manifest that as per the scheme promulgated by Juvenile

Justice Act, the matriculation certificate of the child

concerned is the highest rated option to determine the age.

In the absence of said certificate, date of birth entered into

first school attended by the child will hold the value. In

absence of such entry, birth certificate issued by a

Corporation or a Municipal Authority or a Panchayat will

prevail. Yet again, if such a certificate is not available, the

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determination of age of the child concerned be decided on

the basis of medical opinion.

14. Further, in the recent judgment of the Hon'ble

Supreme Court in the case of Rishipal Singh Solanki v.

State of U.P. & Ors. reported in (2021) SCC OnLine SC

1079, the Hon'ble Supreme Court go through the various

question including inquiry by the trial Court towards the

correctness of date of birth mentioned in the documents.

The Hon'ble Supreme Court has considered its previous

judgment passed in the case of Ashwani Kumar Saxena v.

State of M.P. reported in (2012) 9 SCC 750 wherein it was

noted that there may be situations where the entry made in

the matriculation or equivalent certificates, date of birth

certificate from the school first attended and even the birth

certificate given by a corporation or a municipal authority or

a panchayat may not be correct. But court, Juvenile Justice

Board or a committee functioning under the JJ Act is not

expected to conduct such a roving enquiry and to go behind

those certificates to examine the correctness of those

documents, kept during the normal course of business. Only

in cases where those documents or certificates are found to

be fabricated or manipulated, the court, the Juvenile Justice

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Board or the committee need to go for medical report for

age determination. The Hon'ble Supreme Court clarified the

principle laid down in the case of Ashwani Kumar Saxena

(supra) considering its subsequent verdict passed in the case

of Abuzar Hossain @ Gulam Hossain v. State of West

Bengal reported in (2012) 10 SCC 489 (three judges bench)

and Sanjeev Kumar Gupta v. State of Uttar Pradesh

reported in (2019) 12 SCC 370. The Hon'ble Supreme

Court has held as under :-

" In the said case, the judgment of this Court in Ashwani Kumar Saxena (supra) and Abuzar Hossain (supra) were considered and it was noted that the decision in Abuzar Hossain was rendered three days after the decision in Ashwani Kumar Saxena, and in Abuzar Hossain, which was a three-Judge Bench decision, it was observed that the credibility and acceptability of the documents, including the school leaving certificate, would depend on the facts and circumstances of each case and no hard and fast rule as such could be laid down in that regard.

It was observed in Abuzar Hossain (supra) by Hon'ble T.S. Thakur J., as then the learned Chief Justice was, that directing an inquiry is not the same thing as declaring the accused to be a juvenile. In the former, the Court simply records a prima facie conclusion, while a declaration is made on the basis of evidence. Hence, the approach at the stage of directing an inquiry has to be more liberal, lest, there is miscarriage of justice. The standard of proof required is different for both. In the former, the Court simply records the prima facie conclusion. It would eventually depend on how the Court evaluates such material for a prima

Cr.A.No.2018/1998

facie conclusion and the Court may or may not direct an inquiry. In the latter, the Court makes a declaration on evidence that it scrutinises and accepts such evidence only if it is worthy of acceptance. His Lordship further observed as under:

"The Court would, therefore, in each case weigh the relevant factors, insist upon filing of better affidavits if the need so arises, and even direct, any additional information considered relevant including the information regarding the age of the parents, the age of siblings and the like, to be furnished before it decides on a case-to-case basis whether or not an enquiry under Section 7-A ought to be conducted. It will eventually depend on how the court evaluates such material for a prima facie conclusion that the court may or may not direct an enquiry."

15. In Rishipal's case, the Hon'ble Supreme Court

also went through the verdict passed in the case of Parag

Bhati (Juvenile through Legal Guardian-Mother-Smt.

Rajini Bhati v. State of Uttar Pradesh reported in (2016)

12 SCC 744 wherein it has been observed as under :-

"36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain, an enquiry for determination of the age of the

Cr.A.No.2018/1998

accused is permissible which has been done in the present case."

16. Further, in Rishipal's case, the Hon'ble

Supreme Court has also laid down the principle that when

the determination of age is on the basis of evidence such

as school records, it is necessary that the same would have

to be considered as per Section 35 of the Indian Evidence

Act, inasmuch as any public or official document

maintained in the discharge of official duty would have

greater credibility than private documents.

17. Here in the case, as above stated, the admission

date of birth is filled up by the then teacher and thus, same

is admissible as per the scheme promulgated under Juvenile

& Justice Act as well as Principle laid down by the Hon'ble

Supreme Court in the above referred cases.

18. Now I come to the next question as to whether

the admission register collected by the prosecution to show

the prosecurix as minor, is reliable without being

corroborated from other evidences ?

19. In this regard, in the case of State of

Chhattisgarh vs. Lekhram reported in (2006) 5 SCC 736,

the Hon'ble Supreme Court has held as under :-

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"12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect.

13. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws' place for some time and after the "gauna" ceremony, she came back. The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix.

14. Only because PW 3 the father of the prosecutrix could not state about the date of birth of his other children, the same, by itself, would not mean that he had been deposing falsely. We have noticed hereinbefore, that he, in answer to the queries made by the counsel for the parties, categorically stated about the year in which his other children were born. His statement in this behalf appears to be consistent and if the said statements were corroborative of the entries made in the register in the school, there was no reason as to why the High Court should have disbelieved the same. We, therefore, are of the opinion that the High Court committed a serious error in passing the impugned judgment. It cannot, therefore, be sustained. It is set aside accordingly."

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(emphasis supplied)

20. Further, in the case of Murugan vs. State of

T.N. reported in (2011) 6 SCC 111, the Hon'ble Supreme

Court has also held as under :-

"24. The documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Evidence Act, 1872. (Vide Umesh Chandra v. State of Rajasthan and State of Bihar v. Radha Krishna Singh.)

25. This Court in Madan Mohan Singh v. Rajni Kant considered a large number of judgments including Brij Mohan Singh v. Priya Brat Narain Sinha, Birad Mal Singhvi v. Anand Purohit, Updesh Kumar v. Prithvi Singh, State of Punjab v. Mohinder Singh, Vishnu v. State of Maharashtra and Satpal Singh v. State of Haryana and came to the conclusion that while considering such an issue and documents admissible under Section 35 of the Evidence Act, the court has a right to examine the probative value of the contents of the document. The authenticity of entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such document may also require corroboration in some cases.

26. In the instant case, in the birth certificate issued by the Municipality, the birth was shown to be as on 30-3-1984; registration was made on 5-4-1984; registration number has also been shown; and names of the parents and their address have correctly been mentioned. Thus, there is no reason to doubt the veracity of the said certificate. More so, the school certificate has been issued by the Headmaster on the basis of the entry made in the school register which corroborates the contents of the certificate of birth issued by the Municipality.

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Both these entries in the school register as well as in the Municipality came much before the criminal prosecution started and those entries stand fully supported and corroborated by the evidence of Parimala (PW 15), the mother of the prosecutrix. She had been crossexamined at length but nothing could be elicited to doubt her testimony. The defence put a suggestion to her that she was talking about the age of her younger daughter and not of Shankari (PW 4), which she flatly denied. Her deposition remained unshaken and is fully reliable."

(emphasis supplied)

21. Now this Court came to conclusion 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. Entry in school

register/certificate requires to be proved in accordance with

law. Herein, entry made in the public record i.e. admission

register (Ex.P/4) is relevant and can be relied upon and if

the entry mentioned in the admission register is reliable then

only the age of prosecutrix can be determined on that basis.

22. In view of the aforesaid legal position, this

Court would examine the facts of the present case.

23. On reading of statement of PW-4 who was

posted as Head Master in Middle School Ward No.5,

Shahdol at the relevant point of time, submitted before the

trial Court that he is not author of Exhibit P/4 i.e. school

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admission register. He did not verify the date of birth of

prosecutrix from any reliable documents. He accepted that

he mentioned such date of birth at the behest of father of

prosecutrix.

24. The father of prosecutrix has also been

examined by the trial Court as PW-5. He submitted that the

date of birth of prosecutrix which mentioned in the school

25. The mother of prosecutrix i.e. PW-9 has also

been examined by the trial Court and on perusal of her

statement, she also failed to disclose the actual date of birth

of prosecutrix.

26. Further, The prosecution has also produced

father-in-law of the prosecutrix as PW-8 who submitted

before the Court that at the time of marriage, the age of

prosecutrix and her husband was 18 years.

27. The statement of prosecutrix herself is most

relevant on the issue of her determination of age. On

reading the statement of prosecutrix (PW-1), on the day of

examination i.e. 24.03.1998, she claimed herself aged about

20 years. She stated that her date of birth mentioned in the

school register is wrong. It is not in dispute that she was

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married at the time of incident. She accepted her consensual

relationship with the appellant/accused as she was in love

with him. Her married life was not going well. She also

accepted that at that time she was living with the accused in

his house.

28. The statement of medical examiner, namely, Dr.

N.P. Dwivedi (PW-16) is also important piece of evidence

and on perusal thereof, it appears that he accepted the

suggestion of defence counsel regarding variation of three

years in determination of age of prosecutrix. As per the said

witness, on the day of incident, the prosecutrix was above

15 years.

29. Therefore, it is evident that the date of birth

mentioned in the school register (Ex. P/4) was written by

the teacher of that school on the basis of information given

by father of prosecutrix who admitted that he informed such

date of birth on estimation. So, the date of birth of

prosecutrix mentioned in school register (Ex. P/4) is not

found proved and wholly reliable to determine her age.

30. In the case of Sunil v. State of Haryana,

(2010) 1 SCC 742, the Hon'ble Supreme Court dealt with

the similar issues, relevant paras are quoted herein under :

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"26. Bishan, PW 8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.

27. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunae in the prosecution version. The appellant is clearly entitled to the benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case."

31. After evaluating all the evidences produced by

the prosecution, this Court came to conclusion that it is

found uncertain that on the day of incident, the prosecutrix

was minor. The date of birth of prosecutrix is disputed as

entry thereof made in admission register (P/4) is not reliable

and other relevant witnesses failed to disclose its source of

information. The prosecutrix claimed herself major on the

day of incident. The medical examiner was also not

abundantly sure regarding minority of prosecutrix on the

day of incident. The prosecution did not conduct any

ossification test of prosecutrix.

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