Madhya Pradesh High Court

Chintu @ Sameer vs The State Of Madhya Pradesh on 2 March, 2022

Author: Satyendra Kumar Singh

                              1
                                                        Cr.Appeal No.311of 2018

                 HIGH COURT OF MADHYA PRADESH
                        BENCH AT INDORE


                           Cr.Appeal No.311/2018

                             Chintu @ Sameer
                                Age 22 Years
                         R/o Bangali Colony, Dewas
                       Police Station BNP, Distt. Dewas

                                            Vs.

                          State of Madhya Pradesh
--------------------------------------------------------------------------------
Shri Manish Yadav, learned counsel for the appellant.
Shri      A.S.    Sisodiya,       learned     Govt.      Advocate,     for      the
respondent/State.
--------------------------------------------------------------------------------

Reserved on: 17.02.2022


                           JUDGMENT

(Delivered on .03.2022)

Satyendra Kumar Singh, J.,

Appellant has preferred this appeal under Section 374(2) of

the Code of Criminal Procedure, 1973(2 of 1974) [in short

Cr.P.C.] being aggrieved by the judgment dated 26.10.2017

passed by the Court of Special Judge (SC/ST Act), Dewas in

S.T.No.2100075/15 and Special Case No.2100019/15, whereby

the appellant has been convicted and sentenced as under:-

          CONVICTION                                  SENTENCE
  Section            Act              Imprisonment         Fine    Imprisonment
                                                                   in lieu of fine
 376(2)(i)           IPC             R.I. For 10 years 10,000/-        1 year
 376(2)(n)           IPC             R.I. For 10 years 10,000/-        1 year
    363              IPC             R.I. For 5 years     1000/-     2 months
   366               IPC             R.I. For 5 years     1000/-     2 months
5(L)/6       POCSO Act, 2012         R.I. For 10 years 10,000/-        1 year

                                             Cr.Appeal No.311of 2018

2. The prosecution case in brief is as follows:

(i) Complainant Kailash; a member of SC/ST community

resides with his wife, minor daughter/prosecutrix aged about 15

years and other three children in village Revabag, Police Station

BNP, District Dewas. Appellant knowing the fact that prosecutrix

is minor girl and member of SC/ST community enticed her and

made friendship with her. On 25.12.2014 at about 09:00 AM,

when complainant alongwith his wife went to his work place and

prosecutrix stayed at home to take care of her younger siblings,

appellant came there and by enticing the prosecutrix to get marry,

took her on motorcycle and went to Kailadevi Temple, Dewas

where both of them exchanged garlands. Thereafter, appellant took

her to sunny's house situated in Bhawani Sagar. On the next date,

appellant took the prosecutrix to Mandleshwar by bus and kept her

in the house of his aunt (Badi ma). Thereafter, he took her to

Dewas and kept her in rented house and committed rape upon her.

Then out of fear of police, he took her to Pathror and again

committed rape upon her.

(ii) On the date of incident i.e. 25.12.2014, when complainant

alongwith his wife returned to his home and found prosecutrix is

missing, he saw her here and there and on the next day i.e. on

26.12.2014 at about 19:45 PM lodged missing report at Police

Station BNP, Dewas where SI Premlata registered FIR (Ex.P-1)

against an unknown person for the offence punishable under

Section 363 of IPC on the basis of oral information given by the

complainant. On 05.01.2015, she recovered prosecutrix from the

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possession of the appellant as per recovery memo (Ex.P-2). Vide

application (Ex.P-12), sent the prosecutrix to MG Hospital, Dewas

for medical examination where Dr.Reshma Pathan examined her

and prepared MLC report (Ex.P-12A). She prepared and sealed her

vaginal slides alongwith her pubic hairs and peticoat and handed

over the same to concerned police constable for medical

examination.

(iii) SI N.S. Nain went to the spot and prepared spot map (Ex.P-

15) and recorded the statement of complainant alongwith other

witnesses namely; Anil Malviya, Tanu and Umrao. As matter

relates to SC/ST Act, investigation was handed over to Dy.

Superintendent of Police Mr. P.Nigwal who recorded the

statements of prosecutrix alongwith her parents and others namely;

Suneel, Devkabai and Prahlad and arrested the appellant as per

arrest memo (Ex.P-7) and sent him to MG Hospital, Dewas for

medical examination where Dr. R.C. Verma examined him and

prepared MLC report (Ex.P-5). He also prepared and sealed his

semen slide and handed over the same to concerned police

constable. Dy. S.P., P.Nigwal obtained copy of scholar register

(Ex.P-11) of the prosecutrix from Govt. Primary School, Gowadi,

Tehsil Bagli and seized the same as per seizure memo (Ex.P-9). He

also obtained caste certificate of appellant (Ex.P-13) as well as that

of prosecutrix (Ex.P-14) and her father. Vide letter (Ex.P-10) sent

the seized articles to FSL, Rau for chemically examination. After

completion of investigation, filed the charge sheet before the Court

of Judicial Magistrate First Class, Dewas, who committed the case

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to the Court of Special Judge (SC/ST Act), Dewas.

3. Learned trial Court considering the material prima-facie

available on record framed charges u/S 363, 366, 376(2)(i), 3(2)(n)

of Indian Penal Code, 1860 (hereinafter called IPC) and under

Section 5(L)/6 of the Protection of Children from Sexual Offences

Act, 2012 and also u/s 3(2)(5) of Scheduled Caste and Scheduled

Tribe (Prevention of Atrocities) Act, 1989 against the appellant

who abjured guilt and prayed for trial.

4. Learned trial Court after appreciating the oral as well as

documentary evidence available on record, acquitted the appellant

from the charges u/S 3(2)(5) of Scheduled Caste and Scheduled

Tribe (Prevention of Atrocities) Act, 1989 but convicted the

appellant for the offences punishable under Sections 363, 366,

376(2)(i), 3(2)(n) of Indian Penal Code, 1860 (hereinafter called

IPC) and under 5(l)/6 of the Protection of Children from Sexual

Offences Act, 2012 and sentenced him as stated in para 1 of the

judgment. Being aggrieved by the said judgment of conviction and

order of sentence, appellant has preferred this appeal for setting

aside the impugned judgment and discharging him from the

aforesaid charges framed against him.

5. Learned counsel for the appellant submits that the learned

trial Court has committed legal error while shifting burden of

proof on the appellant without proving initial burden by the

prosecution. Pradhan Adhyapak of Govt. Primary School has

produced the scholar register (Ex.P-11) wherein prosecutrix's date

of birth was written as 02.07.1999 but admitted in his cross-

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examination that he was not aware about the fact that on what

basis prosecutrix's date of birth was written in the scholar register

as he was not posted in the said school at the time of her

admission. Prosecutrix's father has admitted that at the time of her

admission, he did not produce prosecutrix's birth certificate.

Prosecutrix's mother also admitted that her marriage was

solemnized about 30 years ago and after two years of her marriage,

prosecutrix was born. Under these circumstance, learned trial

Court has committed error while holding this fact to be proved that

prosecutrix was minor at the time of incident. Prosecutrix in her

statement recorded under Section 164 (Ex.D-1) specifically stated

that she solemnized marriage with the appellant and she alongwith

appellant herself went to the police station. She in her aforesaid

statements nowhere stated about the fact that appellant committed

rape upon her. Therefore, findings with regard to involvement of

the appellant in the crime is not sustainable. Thus, impugned

judgment of conviction and order of sentence deserves to be set

aside and appellant may be acquitted from the charges framed

against him.

6. Per contra, learned counsel for the respondent/State while

supporting the impugned judgment of conviction and order of

sentence submits that judgment so passed by the trial Court is

based on proper appreciation of evidence available on record.

Prosecutrix as well as her parents have stated that at the time of

incident prosecutrix was minor aged about 15 years. From the

scholar register (Ex. P-11), it is clear that she was minor at the

Cr.Appeal No.311of 2018

time of incident. Prosecutrix was recovered from the possession of

the appellant and admittedly appellant kept her for several days

and committed rape upon her. Therefore, confirming the judgment

of conviction and order of sentence, the appeal filed by the

appellant deserves to be dismissed.

7. We have heard the parties at length and perused the record.

8. Prosecution has examined as many as 15 witnesses and

exhibited 15 documents in his support.

9. First of all it has to be seen that whether the prosecutrix was

minor i.e. below 18 years at the time of incident. In this regard,

prosecution has examined Pradhan Adhyapak - Bheem Singh (PW-

9) of Govt. Primary School, Gowadi, Tehsil Bagli who on the

basis of scholar register entries deposed that prosecutrix's date of

birth is 02.07.1999, according to which at the time of incident she

was below 18 years of age. Regarding the admissibility of the

documents proved in support of age of the prosecutrix and their

probative value, the Supreme Court in the case of Satpal Singh

Vs. 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 Head Master, Mohinder Singh (PW 3). According to him, Rajinder Kaur (PW 15), the prosecutrix, was admitted in Government School, Sharifgarh, Dist. Kurukshetra on 2.05.1990 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 13.02.1975. 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, Sh. Mohinder Singh, Head Master (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

Cr.Appeal No.311of 2018

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 Indian Evidence Act, 1872 (hereinafter called as `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 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 & Ors. Vs. Radha Krishna Singh & Ors. AIR 1983 SC 684, 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 of its probative value may be nil..

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.

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."

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 Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official 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, voter 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 Vs. The State of U.P. & Ors.

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AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.

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 Shri Raja Durga Singh of Solon Vs. Tholu & Ors. AIR 1963 SC 361).

24. While dealing with a similar issue in Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796, this Court held as under:-

"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 Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282, observed as under:-

"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 Vs. State of Maharashtra (2006) 1 SCC 283, 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 un- impeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- impeccable 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.

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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 summerised 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 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 13.02.1975 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)

10. In the present case, although Pradhan Adhyapak Bheem

Singh (PW-9) of the aforesaid school, on the basis of scholar

02.07.1999 but he admitted in his cross-examination that at the

time of her admission, he was not posted in the said school. Hence,

he was not aware about the fact that on what basis prosecutrix's

date of birth was written in the scholar register. Prosecutrix's

father - Kailash (PW-1) and mother Ashabai (PW-2) both have

deposed that prosecutrix was minor aged about 15 years at the

time of incident but they have admitted in their cross-examination

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that they do not have any birth certificate with regard to the age of

the prosecutrix. Complainant- Kailash (PW-1) has also admitted in

his cross-examination that he did not produce prosecutrix's birth

certificate at the time of her admission, when she got admission in

the Govt. Primary School. Admittedly, prosecution has not

produced any other documents or oral evidence to demonstrate

that prosecutrix was born on 02.07.1999. Although scholar register

entries (Ex.P-11) is admissible in evidence under Section 35 of the

Evidence Act but the same in itself cannot be taken to be the best

piece of evidence as per the aforesaid decision rendered by the

Hon'ble Supreme Court in the case of Satpal Singh Vs. State of

Hariyana (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

below 18 years.

11. So far as, the issue with regard to rape is concerned.

Prosecutrix (PW-6) has although deposed that appellant while

enticing her to get marry, took her to different places and after

threatening her, committed rape upon her but she did not say

anything about the places where appellant kept her and committed

rape upon her. She has denied the fact that the appellant kept her

in a rented room at Dewas and thereafter, took her to Pathror. She

in Para 8 of her cross-examination has even denied the fact that

her statement were recorded under Section 164 Cr.P.C. (Ex.D-1)

before the Magistrate, wherein she did not mention the fact that

appellant committed rape upon her. In this way her statements

Cr.Appeal No.311of 2018

recorded under Section 161 Cr.P.C. and 164 Cr.P.C. as well as

statement recorded recorded during trial are not consistent on the

point as to when and where appellant committed rape upon her. As

the prosecution has failed to prove the fact that prosecutrix was

minor at the time of incident. Therefore, only on the basis of her

aforesaid inconsistent statements, conviction of the appellant

cannot be upheld.

12. Therefore in the light of the aforesaid discussion, this Court

has no hesitation to hold that prosecution has failed to prove the

guilt against appellant beyond reasonable doubt. Hence,

conviction of the appellant cannot be upheld and the appeal filed

by the appellant deserves to be allowed. Accordingly, this Court

passes the following order:

(i) Criminal Appeal No.311/2018 filed by the appellant -

Chintu @ Sameer is allowed.

(ii) The judgment of conviction and order of sentence

dated 26.10.2017 passed in S.T. No.2100075/15 and

Special Case No.2100019/15 by which appellant has

been convicted Sections 363, 366, 376(2)(i), 3(2)(n)

of Indian Penal Code, 1860 (hereinafter called IPC)

and under Section 5(L)/6 of the Protection of

Children from Sexual Offences Act, 2012 and

sentenced him as stated in para 1 of the judgment is

hereby set aside.