Madhya Pradesh High Court

Tulsiram vs The State Of Madhya Pradesh on 14 March, 2022

Author: Satyendra Kumar Singh

                             1
                                                    Cr.Appeal No.984 of 2017

             HIGH COURT OF MADHYA PRADESH
                    BENCH AT INDORE


                          Cr.Appeal No.984/2017

1. Tulsiram s/o Bhagirath
   Age 25 Years
2. Balmukund s/o Kishanlal
   Age 26 years
3. Balchand s/o Purilal
   Age 30 years
   R/o Village Polkheda
   Police Station Machalpur, Distt. Rajgarh

       Vs.

    State of Madhya Pradesh
--------------------------------------------------------------------------------
Shri Avinash Kumar Khare, learned counsel for the appellants.
Shri     Gopal     Yadav,        learned    Govt.     Advocate,       for    the
respondent/State.
--------------------------------------------------------------------------------

Reserved on: 18.02.2022


                           JUDGMENT

(Delivered on 14.03.2022)

Satyendra Kumar Singh, J.,

Appellants have 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 26.04.2017

passed by the Court of learned Sessions Judge, Rajgarh in

S.C.No.55/2016, whereby the appellants have been convicted

under Section 376 of Indian Penal Code, 1860 (hereinafter called

IPC) and under Section 3/4 and 5(J)/6 of the Protection of children

from Sexual Offences Act, 2012 and sentenced to undergo RI for

10 years with fine of Rs.2500/-, RI for 10years with fine of Rs.

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2500/- and 10 years with fine of Rs.2500/- and in default of

payment of fine, additional rigorous imprisonment for 3-3 months

each.

2. The prosecution case in brief is as follows:

(i) on 29.12.2015 at about 19:30 PM, minor prosecutrix aged

about 16 years lodged a report to the effect that about 5-6 month

ago at about 12:00 noon, while she went to Village - Malhargarh

Polkheda (Kankad) for grazing her cattle, appellant Balmukund

came there from behind and caught hold her and committed rape

upon her. When she screamed, he pressed her mouth and

threatened her, if she discloses this incident to anyone, he will cut

her into pieces and throw in Kalisindh river. After few days of this

incident, appellant Balchand met her near Nanuram's well and

referring to Balmukund's act, he took her in the shade of Babul

tree and forcefully committed rape upon her and threatened her, if

she discloses this incident, will face dire consequences. After a

period of 8-9 days of this incident at about 4:00 PM, when she was

going towards well, delinquent juvenile Sonu met her and

referring to Balmukund and Balchand's act, forcefully committed

rape upon her as well as threatened her. After about 15 days of this

incident, when she was going to purchase match stick for her

father, appellant Tulsiram met her near hand-pump and forcefully

took her into his tapri and referring to Balmukund, Balchand and

Sonu's act, committed rape upon her and also threatened her. After

aforesaid incidents, when she became pregnant and her father

asked about her pregnancy, she narrated the entire story to him and

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thereafter, went to the Police Station Machalpur, Rajgarh for

lodging the reports.

(ii) SI Mahendra Kumar Shakya, registered the FIR (Ex.P-8) on

the basis of the statements of the prosecutrix against the appellants

at Police Station Machalpur, District Rajgarh. Vide application

(Ex.P-13), he sent the prosecutrix to District Hospita, Rajgarh for

medical examination where Dr. Akansha Singh examined her and

prepared her MLC report (Ex.P-18) as well as prepared slides of

her vaginal swab and sealed and handed over the same to

concerned police constable. During MLC, she also found that

prosecutrix was having 24-26 weeks of pregnancy at the time of

medical examination.

(iii) SI Mahendra Kumar arrested appellants; Balmukund,

Balchand and Tulsiram as per arrest memo (Ex.P-15, P-16, P-17)

respectively and sent them to the Primary Health Center,

Machalpur for their medical examination where Dr. Manoj Shakya

examined them and found that they all are capable of doing sexual

intercourse as per MLC report (Ex. P-3, P-4, P-5). He prepared

and sealed semen slides of appellants and handed over the same to

the concerned police constable. Patwari Rajendra Kumar (PW-8)

went to all the places of occurence and prepared spot maps (Ex.P-

8, P-9, P-10). SI Mahendra Kumar vide letter (Ex.P-18) sent the

seized articles to FSL for chemical examination and after

completion of investigation, filed the charge sheet before the Court

of Judicial Magistrate First Class, Rajgarh, who committed the

case to the Court of Sessions Juge, Rajgarh.

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3. Learned trial Court considering the material prima-facie

available on record framed charges u/S 376, 376(D) and 506 of

IPC and under Section 3/4 and 5(J)/6 of the Protection of Children

from Sexual Offences Act, 2012 against the appellants 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

appellants from the charges u/S 376(D) and 506 of IPC but

convicted all of them for the offences punishable under Sections

376 of IPC and under 3/4 and 5(J)/6 of the Protection of Children

from Sexual Offences Act, 2012 and sentenced them as stated in

para 1 of the judgment. Being aggrieved by the said judgment of

conviction and order of sentence, appellants have preferred this

appeal for setting aside the impugned judgment and discharging

them from the aforesaid charges framed against them.

5. Learned counsel for the appellant submits that the learned

trial Court has committed legal error while appreciating the

evidence available on record. Prosecution has failed to prove the

fact that prosecutrix was below 18 years of age at the time of

incident. In the MLC report, no external or internal injury was

found on the body of the prosecutrix. FIR is delayed by 5-6

months without any reasonable cause. There is nothing on record

which indicate that prosecutrix got pregnant with appellants.

Therefore, appellants cannot be held guilty and findings with

regard to involvement of the appellants in the crime is not

sustainable. Learned counsel further submits that as prosecutrix

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herself admitted in her cross-examination that a demand of Rs.5

lakh was made to the appellants for compromising the matter and

appellants did not give the aforesaid amount, this report was

lodged against them, hence, the prosecution story is concocted and

appellants are innocent. Learned counsel has relied upon the

judgments passed by the Hon'ble Apex Court in the case of

Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263 and

Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714 to bolster

his submissions. Thus, impugned judgment of conviction and

order of sentence deserves to be set aside and appellants may be

acquitted from the charges framed against them.

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.

From the statement of Pradhan Adhyapak Govt. Middle School,

Polkheda - Mahesh Nagar (PW-1) and entries of scholar register

(Ex.P-1) produced by him, it is very well proved that prosecutrix

was minor at the time of incident. It has been very well explained

by minor prosecutrix in her statements that due to threats given by

the appellants, she did not tell anyone about the incidents.

Admittedly after the incident, she became pregnant, which fact

itself proved that she was subjected to rape. Therefore, confirming

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

by the appellants deserves to be dismissed.

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

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8. This is an admitted fact that appellants and prosecutrix are

resident of same village Polkheda, Police Station Machalpur,

Rajgarh. After the incident, appellants were arrested vide arrest

memo Ex.P-15, P-16, P-17, and thereafter all of them were sent to

Primary Health Center, Rajgarh for medical examination, where

Dr. Mukesh Shakya (PW-2) examined and found them capable of

doing sexual intercourse as per MLC report (Ex.P-3, P-4, P-5).

Prosecutrix (PW-4) deposed that during incident first of all,

appellant Balmukund, then after abut 15 days, Balchand, then after

about 8-15 days, delinquent juvenile Sonu and then after about 8-

45 days, Tulsiram referring to earlier acts of co-accused persons,

forcefully committed rape upon her due to which she became

pregnant. As prosecutrix (PW-4) in her cross-examination

specifically admitted that till she got pregnant and her parents and

sister asked about her pregnancy, she did not tell anyone about the

aforesaid acts of the appellants. Therefore, first of all it has to be

seen that whether prosecutrix was major or minor at the time of the

incident.

9. In this regard, prosecution has produced prosecutrix's

scholar register entries (Ex.P-1) and mark-sheet of her 6 th standard

(Ex.P-2), both issued by Govt. Middle School, Polkheda and

examined Pradhan Adhyapak of the aforesaid school, Mahesh

Nagar (PW-1) alongwith prosecutrix (PW-4), her father Chaganlal

(PW-5) and Dr.Akansha Singh (PW-10). Pradhan Adhyapak of the

aforesaid school, Mahesh Nagar (PW-1) deposed that as per

scholar register entries (Ex.P-1), prosecutrix's date of birth is

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12.07.1999 as shown in her mark-sheet of 6 th standard (Ex.P-2)

also. He admitted in his cross-examination that the aforesaid

entries with regard to the date of birth of the prosecutrix in the

scholar register (Ex.P-1) was made on the basis of school leaving

certificate of her earlier school and he did not obtained any

certificate with regard to her date of birth at the time of her

admission in the aforesaid school. Prosecution has neither

produced school leaving certificate issued by her earlier school nor

examined any witness in this regard that on what basis

prosecutrix's date of birth was written initially in that school at the

time of her admission. Although, prosecutrix (PW-4) and her

father (PW-5) have deposed that prosecutrix's age was 15 years at

the time of incident but her father- Chaganlal (PW-5) has admitted

in Para 4 of his cross-examination that he is illiterate and don't

know the date of birth of his children. He also admitted that he is

not aware about the fact that on what basis prosecutrix's date of

birth was written in the school at the time of her admission.

10. In the present case, prosecution case is based on scholar

the above scholar register entries and their probative value,

observation made by the Supreme Court in the case of Satpal

Singh (supra) is relevant which is 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

Cr.Appeal No.984 of 2017

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 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. AIR

Cr.Appeal No.984 of 2017

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.

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

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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)

11. It has already been discussed above that in the present case

also scholar register entries (Ex.P-1) were made on the basis of

school leaving certificate entries of earlier school and the same has

not been produced on record. Prosecutrix's father has himself

admitted that he is not aware about the fact that on what basis

prosecutrix's date of birth was written in the earlier school. Hence,

Scholar Register entries (Ex.P/1) are although 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

aforesaid decisions rendered by the Hon'ble Apex Court in the

case of Satpal Singh and Jarnail Singh (supra). Dr. Akansha

Singh (PW-10) has stated that developed secondary sexual

characters are sign of adult woman and during medical

examination of the prosecutrix, she found her secondary sexual

characters are well developed as per MLC report (Ex.P-18),

therefore, only on he basis of aforesaid scholar register entries this

Cr.Appeal No.984 of 2017

fact cannot be said to be proved beyond reasonable doubt that

prosecutrix was below 18 years at the time of incident.

12. In this regard, observations made by the Apex Court in the

case Jarnail Singh Vs. state of Haryana (2013) & SCC 263 are

also relevant wherein the provision of Rule 12 of the Juvenile

Justice (Care and Protection of Children) Rules, 2007 has been

discussed. Rule 12(3) gives list of documents and provides that the

age of the child can be ascertained by adopting first available basis

of number of options postulated therein. The Apex Court in Para

22 has observed as under:-

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 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;

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(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 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 7A, 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 off 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."

(emphasis supplied)

13. In the present case, none of the documents as mentioned in

Rule 12(3) has been produced by the proseuction. Therefore, in

view of the aforesaid discussions, it is held that the prosecution

has not been able to prove this fact beyond reasonable doubt that

the age of the prosecutrix, at the time of incident was below 18

years.

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

Prosecutrix (PW-4) in her statement recorded during trial on

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27.09.2016, deposed that about 1 ½ years ago, at about 12:00 noon

when she went to village Malahargarh, Kankad for grazing cattle,

appellant Balmukund came there and forcefully committed sexual

intercourse with her and when she tried to make hue and cry, he

pressed her mouth and threatened her if she discloses about the

incident to anyone, he will cut her into pieces and throw in Kali

Sindh River. She further deposed that after about 15 days of the

above incident, appellant Balchand met her near Nanuram's well

and told her that he would do as Balmukund did with her and then

took her in the shade of Babul tree and forcefully committed

sexual intercourse with her and threatened her, if she tell anyone

about the incident, he will kill her.

15. Prosecutrix further deposed that after about 8-15 days of

above incident, at about 4:00 PM delinquent juvenile Sonu met

her near well and told her that he also do the same as Balchand did

with her and took her into his house and forcefully committed

sexual intercourse with her and thereafter threatened her, if she

told anyone about the incident, he will kill her. She further

deposed that after about 8-15 days of above incident, at the time of

sunset appellant Tulsiram met her near Tute Burma in the village

and took her into his tapri and told her that he would do the same

as delinquent juvenile Sonu did with her and forcefully committed

sexual intercourse with her and also threatened her if she told

anyone, he will kill her.

16. Dr. Akansha Sharma (PW-10) in her statement recorded

before trial Court on 17.02.2017 deposed that on 30.12.2015 she

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medically examined the prosecutrix and found that she was having

24-46 weeks of pregnancy. Her aforesaid statements have not been

challenged by the appellants. Therefore, this fact is clearly

established that during the period of incident, as stated by the

prosecutrix (PW-1) in her statements, she was subjected to sexual

intercourse and due to which she became pregnant. Prosecutrix

(Pw-4) although in her examination in chief deposed that during

every incident, when she tried to resist the appellant, she was

threatened by them and out of fear, she could not tell anyone about

the incident but during cross-examination, she admitted that she

did not make any hue and cry and also did not tell anyone about

the incident suomoto. She specifically stated that when her

stomach started paining, her mother and sister asked about her

health, she tell them about the whole incident. Her aforesaid act

coupled with the fact that she nowhere stated the specific date and

time of any of the incident, makes her statement doubtful.

17. In this regard, place of occurrences and time of incidents are

also relevant. Prosecutrix (PW-4) deposed that she went with the

police at all the places of the occurrence and on her instance, spot

maps (Ex.P-9 to 12) were prepared. SI Mahendra Shakya (PW-9)

admitted in his cross-examination that place of incident shown in

spot map Ex.P-9 is an open place near Polkheda, Machalpur road.

Place of second incident shown in spot map Ex.P-10 is near a

Babul tree and the said tree was not so big and dense so as to hide

anyone behind it. Place of incident shown in spot map Ex.P-12 is

situated in the village and the prosecutrix (PW-4) in Para 16 of her

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cross-examination admitted the same was appellant Tulsiram's

house where his family members were present at the time of

incident. From the aforesaid evidence, it is established that all

incidents were alleged to happen in day hours or at the time of

sunset, either in an open place or in the house of the appellants

where it seems unnatural that prosecutrix was taken forcefully and

subjected to sexual intercourse.

18. Learned trial Court has also observed in Para 16 of the

impugned judgment that probability of consent of prosecutrix in

the aforesaid acts cannot be ruled out. Prosecutrix (PW-4)

admitted in Para 17 of her cross-examination that she demanded an

amount of Rs.5 lakhs from the appellants to compromise the

matter but they did not give the same. Therefore, she wanted to

get them punished. As it has been found that prosecution could not

prove the fact that prosecutrix was minor at the time of incident.

Hence, in the aforesaid circumstances without any corroborative

evidence only on the basis of prosecutrix's doubtful evidence, it is

not safe to hold the appellant guilty for the offences punishable

under Sections 376 of Indian Penal Code, 1860 and under Section

3/4 and 5(J)/6 of the Protection of Children from Sexual Offences

Act, 2012.

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

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

guilt against appellants beyond reasonable doubt. Hence,

conviction of the appellants cannot be upheld and the appeal filed

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

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passes the following order:

(i) Criminal Appeal No.984/2017 filed by the appellants

- Tulsiram, Balmukund and Balchand is allowed.

(ii) The judgment of conviction and order of sentence

dated 26.04.2017 passed in S.C. No.55/2016 by

which appellants have been convicted under Sections

376 of Indian Penal Code, 1860 and under Section 3/4

and 5(J)/6 of the Protection of Children from Sexual

Offences Act, 2012 and sentenced them as stated in

para 1 of the judgment is hereby set aside.