Bheru @ Bhera vs The State Of Madhya Pradesh
2021 Latest Caselaw 6108 MP

                                           1                   CRA No.871 of 2017

     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

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

                     Criminal Appeal No.871 of 2017
                    Bheru @ Bhera and Gopal @ Goba
                                  Versus
                        State of Madhya Pradesh
                            ***************

           Shri Neelesh Agrawal, Counsel for the appellants.
           Shri Vismit Panot, Counsel for the respondent/State.
                                    *****
                              JUDGMENT

(Delivered on 28/09/2021)

1. This criminal appeal has been filed under Section 374 of

Cr.P.C. against the judgement dated 03.05.2017 passed in Special

Case No.31/2015 by Special Judge, Ratlam 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 and    10 years R.I.       Rs.1,000/- 2 months R.I.
     (I)(N)     POCSO
     and        Act,
     5(g),      2012
     5(L)/6
     363        IPC        3 years R.I.        Rs.100/-   1 month S.I.
     366-A      IPC        3 years R.I.        Rs.100/-   1 month S.I.

2. Heard finally with the consent of the parties as the appellant

No.1 is in jail since 03.05.2017.

3. In brief, the facts giving rise to the present appeal are that on

14.11.2014, when PW/2 Jaggu Gadhwal was sleeping in his house

along with his wife and 15 years old daughter, the prosecutrix herein,

when he got up at around 2 O' clock in the night and saw that the

prosecutrix was not at home and when he inquired from his relatives,

she was nowhere to be found. However, he came to know that his

daughter has been lured away by the appellant No.1 Bheru @ Bhera

S/o Babu Maida and his brother-in-law appellant No.2 Gopal @

Goba S/o Girdhari Bhabhar. When he went to Gopal's house, Gopal

told him that he would not return the prosecutrix and also threatened

him of dire consequences and thus, the FIR Ex.P/5 in the present

case has been lodged by the father of the prosecutrix on 23.12.2014

under Sections 363, 366, 506 and 34 of IPC. At the time of incident,

the prosecutrix was less than 18 years of old as she was born on

13.06.1999. She was finally recovered on 30.12.2014 and informed

that on the date when she was abducted by the both these appellants,

appellant No.1 Bheru committed rape on her and kept her for around

one and half months. The appellants were arrested, after the charge-

sheet was filed, they were put to trial and the learned Judge of the

trial Court, after recording the evidence has convicted the appellants

as aforesaid. Hence, this appeal.

4. Counsel for the appellants has submitted that the appellants

and the prosecutrix belong to tribal community and the prosecutrix

was a consenting party as she was also major at the time when the

incident took place.

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

opposed the prayer and it is submitted that no case for interference is

made out as looking to the age of the prosecutrix who has been held

to be a minor, even assuming her consent, it is of no consequence.

6. Heard.

7. On the aforementioned factual backdrop, the questions that fall

for consideration of this Court are, whether the prosecutrix was less

than 18 years old at the time when the incident took place and if the

answer is no, whether she was a consenting party.

8. So far as the age of the prosecutrix is concerned, the learned

Judge of the trial Court has held that the same to be 15 years and five

months. To arrive at such a conclusion, the learned Judge of the Trial

Court has relied upon the Scholar Register Ex.P/11 and on the basis

of which the date of birth certificate Ex.P/10 has also been issued.

She has taken admission in Class 5 th and its mark-sheet Ex.P/3

reveal that her date of birth is 13.06.1999. The learned Judge has also

relied upon the Aadhar Card Ex.P/4 of the prosecutrix in which also

the year of birth is stated to be 1999. So far as the consideration of

the age of the prosecutrix is concerned, this Court, in the case of

Narayansingh Vs. State of M.P. (Cr. A. No.1100 of 2017) decided

on 31.05.2021 has already discussed the relevant factors to be taken

into consideration including the documents which assume

importance while deciding the age of the prosecutrix, the relevant

paras of which read as under:-

"7] 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 Singh6 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)

8] A perusal of the aforesaid decision clearly reveals that merely production of the scholar register in itself does not tantamount to the proof of the age of the prosecutrix unless the same is substantiated by some other unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc. Learned Judge of the Trial Court has also relied upon the fact that the documents produced by the prosecution in respect of age of the prosecutrix, including Exhibit P/15(C) dated 12/06/2012 which is the scholar register of the subsequent school of the prosecutrix, and it is held that it is much prior to the date of offence in the year 2016, hence, there is no reason to disbelieve the aforesaid document. In the considered opinion of this Court, in the light of the aforesaid decision in the case of Satpal Singh (supra), the finding recorded by the learned Judge of the Trial Court only on the basis of scholar register cannot be countenanced in the eyes of law and thus, this court finds that the prosecution has not been able to prove that the prosecutrix was below the age of 18 years at the time of the incident."

9. Considering the facts of the present case on the anvil of the

decision of the apex court in the case of Satpal Singh (supra), it is

apparent from the documents proved by the prosecution that there is

no cogent document available on record to demonstrate that the

prosecutrix was born on 13.06.1999. If the statement of the

prosecutrix's father PW-2 Jaggu is considered, he has stated that he

himself had gone for the admission of her daughter in the school and

has admitted that he is illiterate and has also admitted that what date

the school teacher had recorded of her daughter is not known to him.

He has also admitted that he has seven children and the prosecutrix

was their third child. He has also admitted that it has been 30 years

since his marriage as in the villages a person is married at an early

age and he has also admitted that his children were born within one

and half years' difference. He has denied that the age of the

prosecutrix is 20 years. The aforesaid deposition of the father of the

prosecutrix does not inspire confidence regarding her age and thus, it

would not be safe to decide the age of the prosecutrix only on the

basis of her Scholar Register and other documents, which have also

been prepared on the basis of the same Scholar Register. Thus, it is

held that the prosecution was not able to prove its case beyond

reasonable doubt that the prosecutrix was less than 18 years old and

it is held that at the time of the incident the prosecutrix was above 18

years of age.

10. Now, the question before this Court is whether the prosecutrix

was also a consenting party and whether the appellant has been

falsely implicated. So far as the consent of a prosecutrix is

concerned, the Supreme Court, in the case of Satpal Singh (supra)

has defined it as under:-

"30. It can be held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient."

(emphasis supplied)

12. So far as the consent of the prosecutrix is concerned, in her

statement recorded by the police Ex.D/1 she has stated that she

considers the appellant No.1 as her husband and wants to live with

him only. In her statement recorded under Section 164 of Cr.P.C.

proved as Ex.D/2, she has stated that she eloped from her home on

her own volition and wants to live with her husband appellant No.1

Bheru only and also that Gopal has not done anything to her. There is

also an affidavit of the prosecutrix and appellant, proved as Ex.D/3

wherein she has mentioned her age to be 20 years and has stated that

she is marrying with the appellant No.1 as he is the boy of her own

choice and wants to live with him only and has also solemnized

marriage with him. Although, in her Court statement, she has stated

that she was kept by the appellant No.1 by force who raped her for

one and half months after she was taken from her home by appellant

Nos.1 and 2 but she has not denied that she has given the statements

Ex.D/1 and D/2 but stated that she was afraid of the police and the

appellant. She has also admitted that she came back to her house on

her own volition. She has admitted her photograph on the affidavit

Ex.D/3 which was taken at appellant No.2 Gopal's field. She has

admitted that she resided in the house of appellant No.2 Gopal for a

period of around one and half month wherein his wife and children

were also residing. She has denied that she worked in the field of

appellant No.2 Gopal. She has also admitted that other labourers also

used to come to the field of appellant No.2 and that she used to cook

food for the appellant No.1 and also used to wash his clothes. She

admitted that she did not tell anybody that the appellant No.1 has

brought her by force and has admitted that she has resided with the

appellant No.1 as his wife for one and half month. She has also

admitted that the appellant No.1 never beat her (Maarpeet) with her,

while she stayed with him. She has also stated that when she gave

her statement in the police station, she was not afraid of anybody.

The father of the prosecutrix has admitted that as the appellant No.1

did not pay him money for settling the dispute (which is called

"Bhanjhagada"), hence, he has lodged the report against him. He has

also admitted that he had asked for 1.5 lakhs rupees from the

appellant No.1. He has also admitted that he lodged the FIR Ex.P/5

after one month of the incident. The FIR reveals that it was lodged

on 23.12.2014, whereas the date of incident is said to be 14.11.2014.

13. On due consideration of the aforesaid evidence on record and

the documents proved by the prosecution, this Court is of the

considered opinion that the prosecution has also failed to prove its

case beyond reasonable doubt that the prosecutrix was minor at the

time of incident and that she was not a consenting party. ON the

contrary it is apparent that it was a case of consent and as the father

of the prosecutrix was not given the payment as per their tradition, he

lodged the report against the appellants after more than one month.

In such circumstances, the appellant is entitled to the benefit of doubt

and the impugned judgment cannot be sustained in the eyes of law.

14. Accordingly, the impugned judgment is hereby set aside and

the appeal stands allowed. The appellants are acquitted from the

charges levelled against them. They shall be released immediately, if

not required in any other case.

(SUBODH ABHYANKAR) JUDGE Pankaj

Digitally signed by PANKAJ PANDEY Date: 2021.09.29 10:26:45 +05'30'