Mahendra vs The State Of Madhya Pradesh
2021 Latest Caselaw 6497 MP

                                       1           CRA Nos.1165 and 1182 of 2017

     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

            S.B.: Hon'ble Shri Subodh Abhyankar J.

                  Criminal Appeal No.1165 of 2017
                     Mahendra S/o Kamarlal
                               Versus
                     State of Madhya Pradesh
                         ***************

        Shri S. K. Meena, Counsel for the appellant.
        Shri Ranjeet Sen, Counsel for the respondent/State.
                                 *****
                 Criminal Appeal No.1182 of 2017
               Ghanshyam @ Guddu S/o Kanhaiyalal
                              Versus
                    State of Madhya Pradesh
                        ***************

        Shri Nitin Singh Bhati, Counsel for the appellant.
        Shri Ranjeet Sen, Counsel for the respondent/State.
                                 *****
                           JUDGMENT

(Delivered on 08/10/2021)

1. This judgement shall also govern the disposal of Criminal

Appeal No.1182 of 2017 as both these appeals have arisen out of the

common impugned judgment.

2. These criminal appeals have been filed under Section 374 of

Cr.P.C. against the judgement dated 16.06.2017 passed in Sessions

Trial No.63/2016 by I Additional Sessions Judge, Biaora, Rajgarh

whereby finding the appellants guilty, the learned Judge of the trial

Court has convicted them as under:-

           Conviction                          Sentence
     Section Act           Imprisonment        Fine           Imprisonment
                                                              in lieu of Fine
     376(2)     IPC        10 years R.I.       Rs.5,000/- 2 years R.I.
     (N)
     363        IPC        5 years R.I.        Rs.2000/- 1 year R.I.
     366        IPC        5 years R.I.        Rs.2000/- 1 year R.I.

3. Heard finally with the consent of the parties.

4. In brief, the facts of the case are that the prosecutrix, aged 16

years, was a resident of Village Choupani and opposite to her house,

the appellant Mahendra was also residing. As per the prosecution, he

gave a mobile phone to the prosecutrix and asked her to talk to him

from that phone otherwise she would face serious consequences and

thus, the prosecutrix took the mobile phone from him and started

conversing with him every now and then. On 07.12.2015, when the

prosecutrix had gone to her uncle (Fufa), Phool Singh's house at

Village Baapachi, where the appellant called her and asked her to

return his mobile and, the prosecutrix told him to come and take the

mobile. Thus, in the same evening at around 7 O' clock, the

prosecutrix along with her friend Reena went out on the pretext of

answering nature's call and while Reena turned to bushes, at that time

appellants Mahendra and Ghanshyam came from a motorcycle and

they took the prosecutrix to Biaora, from Biaora they took her to

Gujarat in Train where at Morvi, they started working in light city

and the prosecutrix was also kept in a room at Morvi. According to

the case of the prosecution, the appellants had threatened the

prosecutrix that if she told anybody about the incident, they would

kill her brother, hence, she did not tell anybody about abduction and

rape. Missing person report in this regard was lodged on 08.12.2015

and the prosecutrix was recovered on 28.12.2015 and was handed

over to her mother's custody. The charge-sheet was filed and the

learned Judge of the trial Court, after the case was committed to him,

recoreded the evidence and convicted the appellants as aforesaid.

Being aggrieved of the same, these appeals have been preferred.

5. Counsel appearing for the appellant Mahendra has submitted

that the prosecutrix was major at the time of the incident as even

according to the case of the prosecution her age is around 16 years,

whereas no cogent document has been proved on record to

substantiate her age. Counsel has further submitted that the

prosecutrix was also a consenting party as she has resided with the

appellant Mahendra for a period of around 20 days and has not raised

any objection or hue and cry regarding her abduction and rape by the

appellant Mahendra to any other person.

6. Counsel appearing for the appellant Ghanshyam in Cr.A.

No.1182/2017 has submitted that no overt act is attributed against the

appellant Ghanshyam as the only allegation against him is that he

also accompanied the main accused Mahendra when he took the

prosecutrix. It is further submitted that appellant Mahendra and the

prosecutrix were having an affair and that is why they eloped

together and were residing as husband and wife.

7. Counsel for the respondent/State, on the other hand, has

opposed the prayer.

8. Heard Counsel for the parties and perused the record.

9. From the record, it is found that the Missing Person report

Ex.P/1 was lodged by Pw/1 Phool Singh on 08.12.2015 stating that

his brother-in-law's daughter, the prosecutrix, aged 18 years has gone

missing since yesterday i.e. 07.12.2015, and after preliminary

enquiry, FIR Ex.P/13 was lodged against two unidentified persons on

09.12.2015. The prosecutrix was recovered on 28.12.2015 vide

Ex.P/2 i.e. after around 20 days. In her statement Ex.P/6 recorded on

29.12.2015, u/s.164 of Cr.P.C., the prosecutrix has stated that she was

given a mobile by the appellant Mahendar Singh forcefully so that he

can talk her. But when the prosecutrix had gone to her Aunt's house,

the Appellant came there and demanded his mobile back and when

she went out along with her friend Reena PW/5, at that time the

appellant Mahendar came on a motorcycle along with the other

accused/appellant Ghanshyam @ Guddu and took her by force and

from there they went to Gujarat by Sabarmati Train.

10. The questions which fall for consideration of this Court are

that firstly, whether the prosecutrix was minor at the time of incident

and secondly, if the first whether the prosecutrix was a consenting

party.

11. Regarding the admissibility of the documents proved in

support of the age of the prosecutix and their probative value, the

Supreme Court in the case of Satpal Singh v. State of Haryana,

(2010) 8 SCC 714 has 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 Headmaster, Mohinder Singh (PW 3). According to him, Rajinder Kaur (PW 15), the prosecutrix, was admitted in Government School, Sharifgarh, District Kurukshetra on 2- 5-1990 on the basis of school leaving certificate issued by Government Primary School, Dhantori. In the school register, her date of birth has been recorded as 13-2-1975. 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, Shri Mohinder Singh, Headmaster (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 Evidence Act, 1872 (hereinafter called as "the 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 to 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 v. Radha Krishna Singh 6 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 or its probative value may be nil. ... (SCC p. 138, para 40)

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. (SCC p. 143, para 53)

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. (SCC p. 171, para 145)"

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 v. State of Bihar; Ram Murti v. State of Haryana Dayaram v. Dawalatshah; Harpal Singh v. State of H.P.; Ravinder Singh Gorkhi v. State of U.P.; Babloo Pasi v. State of Jharkhand; Desh Raj v. Bodh Raj and Ram Suresh Singh v. Prabhat Singh. In these cases, it has been held that even if the entry was made in an official record by the official concerned 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, voters 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 v. State of U.P. and Santenu Mitra v. State of W.B.

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 Durga Singh v. Tholu.)

24. While dealing with a similar issue in Birad Mal Singhvi v. Anand Purohit, this Court held as under: (SCC p. 619, para 15)

"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 v. Priya Brat Narain Sinha, observed as under: (AIR p. 286, para 18)

"18. ... The reason why an entry made by a public servant in a public or other official book, register, or record 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 v. State of Maharashtra20 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 unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable 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 summarised 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 to 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 13-2-1975 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 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)

12. Thus, this court is required to test the evidence produced by

the prosecution on the anvil of the aforesaid dictum of the Supreme

Court.

13. Regarding the date of birth of the prosecutrix, which is said to

be 11.02.1999, the prosecution has proved Ex.P/20 which is a

certificate issued by the Principal, Primary School Choupani, Block

Development Chanchanda, District Guna (MP) on 24.01.2016,

coupled with Ex.P/21 which is the Scholar Register in which also the

date of birth of the prosecutrix is stated to be 11.02.1999, admittedly,

the date of the incident is 07.12.2015.

14. PW-2 Smt. Bhulibai, the mother of the prosecutrix has stated

the prosecutrix's age is 16 years, as she was born sixteen years ago.

However, regarding her date of birth in school is concerned, she has

stated that the prosecutrix was admitted by her maternal uncle (ekek)

in the school and she does not know as to which document her

brother had taken to the school to record the date of birth of the

prosecutrix.

15. So far as the Mama of the prosecutrix is concerned, who is

examined as PW-4, Kanwar Lal, he has stated that he got the

prosecutrix admitted in the school and her date of birth was recorded

as per his diary but diary has not been not produced in the Court. He

has also denied that the date of birth of the prosecutrix is 11.02.2019

and that he did not mention it in Ex.D/4 i.e. his statement u/s.161 of

Cr.P.C. Although he has denied that age of the prosecutrix is nineteen

years but but has admitted in para 9 of his deposition that he did

mention the age of the prosecutrix as eighteen years at the time when

the report Ex.P/1 was lodged.

16. Admittedly, there is no other document available on record to

demonstrate that the prosecutrix was born on 11.02.1999 and the

scholar register in itself cannot be taken to be the best piece of

evidence as per the aforesaid decision rendered by the Supreme

Court in the case of Satpal Singh (supra). In view of the same, it is

held that the prosecution has not been able to prove its case beyond

reasonable doubt that the age of the prosecutrix, at the time of

incident was less then 18 years.

17. So far as the consent of the prosecutrix PW-3 is concerned,

she has reiterated her statement recorded under Section 164 of

Cr.P.C. in the trial Court also, she has stated that at the time when her

Fufa and Mama came to rescue her at Morvi Factory, she was inside

the room and her uncle and police had opened the door, she has also

admitted that when the accused / appellant Mahendra had given her

the mobile around eight days ago prior to the incident, this fact was

not disclosed by her either to her mother or to her any friend as the

appellant had threatened her. She has also admitted that she used to

talk to the appellant Mahendra on the mobile phone.

18. In para 23, although she has stated that whenever the accused

persons (the appellants herein) used to go out of the room, they used

to close the door from behind, however, this statement is an omission

as she has not disclosed these facts in her police statement, as also

her statement under Section 164 of the Cr.P.C. On the contrary, PW-

1 Phool Singh (Fufa), in para 10 of his cross-examination, has

clearly stated that when they approached the room of the prosecutrix,

there was nobody in the room and the appellant was working in the

factory but he ran away soon after looking at them. This fact is also

affirmed by PW-14 Nawal Singh Bhadoriya, Sub Inspector of Police,

the Investigating Officer as he has also admitted that in para 13 of his

deposition that when they went to Light city of Morvi, where the

prosecutrix was kept by the appellant, they found that the room was

not closed from the inside and when they called her, the prosecutrix

came out of the room. He has also admitted that when they

approached the room, the room was not closed from outside and it

was not as if they opened the room from outside after the prosecutrix

asked them to do so. He has also admitted that the prosecutrix was

alone in the room.

19. It is apparent from the aforesaid evidence brought on record

that the prosecutrix was alone, was free to move around at the time

when her maternal uncle came to rescue her as the appellants were

also working in the factory.

20. So far as appellant Ghanshyam is concerned, the prosecutrix

has not attributed any overt act against him, apart from the fact that

he also accompanied her and Mahendra to Gujarat Factory.

21. In the MLC of the prosecutrix proved as Ex.P/4 by PW-7 Dr.

Shaily Garg, she has clearly stated that the vagina of the prosecutrix

was torn, however, there were no external or internal injuries found

on the body of the prosecutrix. Regarding rape, she could not give

any opinion. She has also not given any opinion about the age of the

prosecutrix. She has also admitted that the prosecutrix was probably

habitual to sexual intercourse, that is why her hymen was ruptured.

The FSL report Ex.P/7 is also negative as on none of the slides of the

prosecutrix the semen and spermatozoa were found.

22. PW-5 Reena, the friend of the prosecutrix has been examined

in support of the prosecution, who has stated that she was

accompanying the prosecutrix at the time, when she was abducted by

the appellants. Although in her examination-in-chief, she has stated

that the prosecutrix was forcefully made to ride the motorcycle,

however, this is an omission, as she has not stated that the same in

her statement under Section 161 of Cr.P.C. She has also stated that

when she was accompanying the prosecutrix, the prosecutrix told her

to continue to the bush and that she is going to the road side. She has

also admitted that she did not hear any cry from the prosecutrix at the

time of the incident. She has also admitted that the prosecutrix had

the mobile phone of her Fufa and also that in her police statement

she has stated that the prosecutrix had taken her (pw/5's) phone, as

she (pw/5) did not find her phone in the house.

23. This court also finds that vide Ex.P/7 only one mobile phone

has been seized from the appellant Mahendra and that too without

sim. The aforesaid fact also belies the story of the prosecution as

there is no mobile number or data on record to substantiate the claim

of the prosecutrix as the whole story begins with a mobile phone

only which was allegedly given by the appellant to the prosecutrix.

Apart from that, the prosecutrix also did not complain to anybody of

the offence which was being committed by the appellants despite the

fact that she was left free for considerable period of time during the

day time for around twenty days when the appellants used to go to

the factory. Thus, the behaviour of the prosecutrix is also beyond

pale.

24. In such facts and circumstances of the case, this court finds

that the prosecution has also failed to prove that the there was no

consent on the part of the prosecutrix as there are material lapses in

the story of the prosecution to affirm the said fact. Thus, this court is

of the considered opinion that the impugned judgment cannot be

sustained in the eyes of law and facts on record, and is liable to be set

aside.

25. Accordingly, Criminal Appeal No.1165/2017 and Criminal

Appeal No.1182/2017 are allowed; and the impugned judgment

dated 16.06.2017 passed in Sessions Trial No.63/2016 by 1 st

Additional Sessions Judge, Biaora, District Rajgarh (MP) is hereby

set aside. Both the appellants have already completed more than four

years' of jail sentence. Appellant Ghanshyam @ Guddu s/o

Kanhaiyalal in Criminal Appeal No.1182/2017 is on bail whereas

appellant Mahendra s/o Kamralal Sondhiya in Criminal Appeal

No.1165/2017 is in jail. Appellant Mahendra s/o Kamralal Sondhiya

be released from the jail forthwith, if not required in any other case;

and the bail bonds of appellant Ghanshyam @ Guddu s/o

Kanhaiyalal (who is already on bail) be discharged.

(SUBODH ABHYANKAR) JUDGE Pankaj rcp

RAMESH CHANDRA PITHWE 2021.10.09 16:59:36 +05'30'