Dharmendra vs The State Of Madhya Pradesh
2022 Latest Caselaw 6861 MP

                                     1
                                                          Cr.A. No.492/2016

     IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

                                BEFORE

       HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH

                      ON THE 07TH OF MAY, 2022

                  CRIMINAL APPEAL No.492 OF 2016

 Between:-
 DHARMENDRA S/O TAKESINGH BHEEL
 AGE : 19 YEARS
 R/O : GRAM ALIN, THANA TALEN
 DISTRICT : RAJGARH (MP)
 AT PRESENT R/O : GRAM NARVAL, THANA BANGANGA
 INDORE (MP)
                                          .....APPELLANT
 (BY SHRI A. K. SAXENA, ADVOCATE)

 AND

 THE STATE OF MADHYA PRADESH
 STATION HOUSE OFFICER
 THROUGH POLICE STATION BANGANGA
 DISTRICT : INDORE (MP)
                                         .....RESPONDENTS
 (BY SHRI RAJESH JOSHI , GOVERNMENT ADVOCATE FOR STATE)


           This appeal coming on for orders this day, Hon'ble Shri Justice
Satyendra Kumar Singh passed the following:

                            JUDGEMENT

The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."] against the

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judgement dated 29.02.2016 passed by the 13th Additional Sessions Judge, Indore (M.P.) in S.S.T. No.69/2015, whereby the appellant has been convicted under Sections 363, 366, 376(2)(i), 376(2)(n), 506-II, 346 and 344 of Indian Panel Code (in short 'IPC') and Section 5L/6 of the Protection of Children against Sexual offences Act, 2012 (in short 'POCSO Act') and sentenced him as follows :-

     S.           Conviction                             Sentence
     No.                            Imprisonment           Fine        Additional
                                                          amount     imprisonment
                                                                      in default of
                                                                       payment of
                                                                          fine
     1         366 of IPC          10 years RI          Rs.1000/-    6 months RI
     2         376(2)((i) of IPC   10 years RI          Rs.1000/-    6 months RI
     3         376(2)(n) of IPC    10 years RI          Rs.1000/-    6 months RI
     4         506-II of IPC       1 year RI                  -             -
     5         346 of IPC          3 years RI           Rs.1,000/-   6 months RI
     6         344 of IPC          2 years RI           Rs.1,000/-   6 months RI

2. Prosecution story, in brief is as follows :-

(i) The appellant and minor prosecutrix aged about 13 years, both were resident of Village Narval, Police Station Banganga, Indore. On 23.02.2015, at about 1.30 PM, when prosecutrix was all alone at her house, appellant came there and on the false pretext of marriage took her to Bhopal by bus and kept her captivated for about 20-21 days in a rented room, threatened her and forcefully committed rape upon her repeatedly.

On the date of incident, when prosecutrix's father- complainant returned back to home and found the prosecutrix went missing, he searched for her at nearby places and also at relatives and thereafter on the next day i.e. on 24.02.2015, at about 14.30 hours, informed the police, on the basis of which FIR (Exhibit-P/2) bearing Crime No.188/2015 was registered at

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Police Station Banganga, District Indore for the offences punishable under Sections 363 of IPC against unknown person. On the same day at about 16.15 hours, SI Keshav Singh Kushwaha went to the spot, prepared spot map (Exhibit-P/4) and recorded the statements of prosecutrix's father and mother.

(ii) On 16.03.2015, prosecutrix somehow escaped from the clutches of the appellant and returned to her parents and narrated the whole incident to them and they took her to police Station Banganga where S.I. Keshav Singh Kushwaha recovered her as per Dastyabi Panchanama (Exhibit- P/3) and handed over to her father-complainant as per Supurdgi Panchnama (Exhibit-P/8). Then, he sent prosecutrix to Community Heath Centre, Indore for her medical examination, where on the same day at about 13:23 hours Dr. Kalpana Bhatnagar medically examined her and prepared MLC report (Exhibit-P/13) wherein she observed as follows :-

Thin built small frame girl of pre-puberty age group. No mark of injury seen all over body. Secondary sex character viz ancillary and public hair sparsely grown. Breast size started developing. No mark of injury seen over perineum. Hymen: old torn. No bleeding or induration seen.

Menarche - Not set yet, as told by prosecutrix and her mother both Dentition 7 / 7

(iii) Dr. Kalpana Bhatnagar prepared prosecutrix's smear vaginal slide, preserved and sealed the same alongwith prosecutrix's underwear and pubic hair and handed over the same to lady constable Sayeeda, who brought the prosecutrix to the hospital. On the same day, ASI Sudha Singh recorded the statement of prosecutrix.

(iv) On 18.03.2015, SI Mohd. Ali arrested the appellant as per arrest memo (Exhibit-P/12) and sent him to the Community Health Centre,

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Indore for his medical examination. He obtained scholar register entry (Exhibit-P/5-C) from the Principal, United Mission High School, Sanwer Road, Indore with regard to the date of birth of prosecutrix, wherein her date of birth is written as 10.02.2004. Vide letter (Exhibit-P/11), sent the seized articles to the Forensic Science Laboratory, Rau, District Indore for chemical examination and after completion of investigation, filed the charge-sheet before the Court of Additional Sessions Judge, Indore.

3. Learned Trial Court considering the material prima-facie available on record, framed the charges under Sections 363, 366, 376(2)(i), 376(2)(n), 506-II, 346 and 344 of IPC and Section 5(l)/6 of POCSO Act against the appellant, who abjured his guilt and prayed for trial. In his statement recorded under Section 313 of Cr.P.C., the appellant pleaded his false implication in the matter. In support of his defense, he did not examine any witness.

4. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, convicted the appellant for the offence punishable under Sections 363, 366, 376(2)(i), 376(2)(n), 506-II, 346 and 344 of IPC and Section 5(l)/6 of POCSO Act and sentenced him to suffer as mentioned in para-1 of this judgement. Being aggrieved with the said judgement of conviction and order of sentence, appellant has preferred this appeal for setting aside the impugned judgement and discharging him from the charges framed against him.

5. Learned counsel for the appellant submits that learned Trial Court has committed a legal error while appreciating the evidence available on record. The prosecution has not proved any cogent documents to substantiate its case that prosecutrix was minor at the time of incident. Dr. Kalpana Bhatnagar mentioned in her MLC report (Exhibit-P/13) that prosecutrix and her parents told her that on the date of incident, prosecutrix herself went with someone out of her own free will, she resided about 20-21 days away from her house and did not raise any objection or hue and cry regarding her abduction and rape by the appellant and she herself returned to her house. There are material contradictions and

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omissions in the statement of prosecution witnesses. Prosecution could not prove the guilt of the appellant beyond reasonable doubt. In the aforesaid circumstances, Trial Court has committed error in holding the appellant guilty for the offences punishable under Sections 363, 366, 376(2)(i), 376(2)(n), 506-II, 346 and 344 of IPC alongwith Section 5(l)/6 of the POCSO Act. Therefore, the impugned judgement of conviction and order of sentence may be set aside and appellant may be acquitted from the charges framed against him.

6. Per contra, learned Public Prosecutor for the respondent-State, while supporting the impugned judgement of conviction and order of sentence submits that the judgement was passed by the Trial Court after proper appreciation of evidence available on record. The same is well reasoned establishing the guilt of the appellant beyond reasonable doubt. Therefore, confirming the impugned judgement of conviction and order of sentence, the appeal filed by the appellant may be dismissed.

7. I have heard learned counsel for the parties at length and perused the record.

8. Perusal of the record reveals that on 24.02.2015, prosecutrix father- complainant (PW-2) lodged FIR (Exhibit-P/2) at Police Station Banganga, Indore against unknown person stating therein that his minor daughter prosecutrix, aged about 13 years has gone somewhere from his house and went missing since yesterday i.e. since 23.02.2015. The prosecutrix was recovered on 16.03.2015 vide Dastyabi Panchnama (Exhibit-P/3) i.e. after about 21 days. In her statement (Exhibit-P/7) recorded on 19.03.2015 under Section 164 of Cr.P.C., prosecutrix has stated that appellant on the pretext of marriage took her to Bhopal by bus, kept her there in a rented room and forcefully committed sexual intercourse with her repeatedly.

9. The questions which fall for consideration of this Court are that firstly, whether the prosecutrix was minor at the time of incident and secondly, whether the prosecutrix was a consenting party?

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10. Regarding the admissibility of the documents proved in support of age of the prosecutrix and their probative value, the Hon'ble 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 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

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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

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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.

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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)

11. Thus, this Court is required to test the evidence produced by the prosecution on the anvil of the aforesaid dictum of the Supreme Court

12. Regarding the date of birth of prosecutrix the prosecution has proved scholar register entry (Exhibit-P/5) alongwith admission form (Exhibit-P/6) of United Mission High School, Sanwer Road, Indore wherein prosecutrix's date of birth is stated to be 10.02.2004 whereas, date of incident is admittedly 23.02.2015. In-Charge Principal, United Mission High School, Sanwer Road, Indore Balmukund (PW-3) deposed that prosecutrix's father-complainant got the prosecutrix admitted in his school in nursery class and as per school scholar register entry (Exhibit-P/5), her date of birth is 10.02.2004. He further deposed that in his school scholar register, prosecutrix's date of birth was written on the

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basis of information given by her father-complainant at the time of her admission in admission form (Exhibit-P/6) and also on the basis of prosecutrix's horoscope produced by him. Complainant (PW-2) has not stated anything about the age of the prosecutrix but her wife, i.e. prosecutrix's mother (PW-1) in para-1 of her statement recorded on 16.06.2015 deposed that prosecutrix was about 14 years of age at that time and her aforesaid statement remained unchallenged during her cross-examination.

13. As prosecutrix's mother (PW-1) and father (PW-2) have not stated prosecutrix's date of birth and nothing material has been produced on record from which it can be inferred that on what basis prosecutrix's date of birth was written as 10.02.2004 in the school scholar register (Exhibit-P/5) therefore, the above scholar register entry is although admissible in evidence under Section 35 of the Indian Evidence Act but the same in itself cannot be taken to be the best piece of evidence as per the decision rendered by the Apex Court in the case of Satpal Singh (supra). Hence, for determining the age of the prosecutrix, observation made by learned Trial Court during recording the statement of prosecutrix as well as observation made by Dr. Kalpana Bhatnagar during medical examination cannot be ignored and should also be taken into consideration. Learned Trial Court while recording the statement of prosecutrix on 23.02.2015 has written her apparent age as 13 years. Dr. Kalpana Bhatnagar (PW-8), while examining the prosecutrix on 16.03.2015, in her MLC report (Exhibit-P/13) observed prosecutrix's physical condition as follows :-

Thin built small frame girl of pre-puberty age group. No mark of injury seen all over body. Secondary sex character viz ancillary and public hair sparsely grown. Breast size started developing. No mark of injury seen over perineum. Hymen: old torn. No bleeding or induration seen.

Menarche - Not set yet, as told by prosecutrix and her mother both Dentition 7 / 7

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14. Dr. Kalpana Bhatnagar's aforesaid observation has not been challenged by the appellant and as per the Modi's Medical Jurisprudence and Toxicology, 23rd Edition, the average period of eruption of the temporary and permanent teeth are as follows :-

                Teeth               Temporary           Permanent
        Central incisors                 ---           6th to 8th year
        Lower                     6th to 8th month
        Upper                     7th to 9th month
        Lateral incisors                 ---           7th to 9th year
        Lower                    10th to 12th month
        Upper                     7th to 9th month
        Canines                  17th to 18th month 11th to 12th year
        Anterior Premolars            Absent          9th to 11th year
        or First Bicuspids
        Posterior Premolars           Absent          10th to 12th year
        or Second Bicuspids
        First Molars             12th to 14th month    6th to 7th year
        Second Molars            20th to 30th month   12th to 14th year
        Third Molars        or        Absent          17th to 25th year
        Wisdom teeth

15. From the aforesaid table, it is apparent that second molars erupt between 12th to 14th year while third molars are wisdom teeth and are erupted between 17th to 25th year. As per statement of Dr. Kalpana Bhatnagar (PW-8) and MLC report (Exhibit-P/13) prepared by her, only 28 tooth of prosecutrix were found erupted, meaning thereby, her third molars were not erupted. In the aforesaid circumstances, taking into consideration the observation of learned Trial Court, while recording the statements of the prosecutrix and also the observation made by Dr. Kalpana Bhatnagar while medically examining the prosecutrix, it can be easily concluded that although prosecution has failed to prove prosecutrix's age

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to be below 16 years at the time of incident but it has been proved beyond reasonable doubt that prosecutrix was minor and below 17 years of age at the time of incident.

16. As prosecutrix was minor at the time of incident and was not competent to give her consent at that time, therefore, for the sake of argument, even if it is presumed that she was a consenting party, then also her consent was of no value. In her statement recorded under Section 164 of Cr.P.C. (Exhibit-P/7) and statements recorded during trial, prosecutrix (PW-4) has specifically deposed that appellant took her to Bhopal, kept her there in a rented room/house, threatened her and forcefully committed wrong with her for 2-3 days. In para-10 of her cross-examination, it has been suggested on behalf of the appellant that appellant himself took her back to Indore, meaning thereby, he was with the prosecutrix till her return, which corroborates the statement of the prosecutrix that appellant took her to Bhopal from her house and kept her there till her return. Undisputedly, prosecutrix went missing since 23.02.2015 to 16.03.2015 and it has been found proved that she was in the company of the appellant. Her statements with regard to the commission of offence of rape are consistent. Appellant neither seriously challenged the same nor has produced any defence in rebuttal of the same. Hence, there is no reason to discard or disbelief the evidence of the prosecutrix in this regard. Appellant's guilt also finds support from the statement of Dr. Kalpana Bhatnagar (PW-8) and MLC report (Exhibit- P/13) prepared by her wherein it has been stated in the history that as told by the prosecutrix and her parents, prosecutrix had gone with someone willingly on 23.02.2015 in the afternoon and has come today i.e. on 16.03.2015. The history of sexual intercourse with the person she had gone with for 6-7 times.

17. In view of the aforesaid discussion, although the prosecution could not prove its case beyond reasonable doubt that prosecutrix was below 16 years of age at the time of incident, but it has been found proved that she was below 18 years of age and was minor at the time of incident. In these circumstances,

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appellant's conviction under Section 376(2)(i) of IPC is not sustainable and the same is liable to be modified and converted into Section 376(1) of IPC and is hereby converted to Section 376(1) of IPC in place of Section 376(2)(i) of IPC, the sentence awarded to the appellant for the aforesaid offence is reduced from RI for 10 years to RI for 7 years. The sentence regarding the amount of fine shall remain intact. In default of payment of fine, to further undergo additional RI for 6 months. Findings with regard to rest of the offences are liable to be affirmed as learned Trial Court has not committed any error in finding the appellant guilty for the offences punishable under Sections 363, 366, 376(2)(n), 506-II, 346 and 344 of IPC and 5(l)/6 of the POCSO Act. Hence, appeal stands partly allowed and the judgement of conviction and order of sentence is modified to the following extent :-

The judgement and order of conviction dated 29.02.2016 passed by the 13th Additional Sessions Judge, Indore (M.P.) in S.T. No.69/2015 is modified to the extent that appellant's conviction under Section 376(2)(i) of IPC stands modified and converted into Section 376(1) of IPC and the sentence awarded to the appellant for the aforesaid offence is reduced from RI for 10 years to RI for 7 years. The sentence regarding the amount of fine shall remain intact. In default of payment of fine, to further undergo additional RI for 6 months. For rest of the offences i.e. offences punishable under Sections 363, 366, 376(2)(n) 506-II, 346 and 344 of IPC and 5(l)/6 of POCSO Act, his conviction and order of sentence is hereby affirmed. For the sake of clarity, a table is being reproduced below :-

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S. Conviction Sentence No. Imprisonment Fine Additional amount imprisonment in default of payment of fine 1 366 of IPC 10 years RI Rs.1000/- 6 months RI Affirmed 2 376(1) of IPC 7 years RI Rs.1000/- 6 months RI Converte d from Section 376(2)(i) 3 376(2)(n) of 10 years RI Rs.1000/- 6 months RI Affirmed IPC 4 506-II of IPC 1 year RI - - Affirmed 5 346 of IPC 3 years RI Rs.1,000/- 6 months RI Affirmed 6 344 of IPC 2 years RI Rs.1,000/- 6 months RI Affirmed All the sentences to run concurrently

Note : As the appellant has been sentenced under Sections 366 and 376(2)

(n) of IPC, therefore, separate sentence has not been passed by learned Trial Court under Section 363 of IPC and 5(l)/6 of POCSO Act.

18. The Registry is directed to send back the Trial Court record forthwith

alongwith copy of this judgement. Let a copy of this order be also sent to the

concerned jail authorities for its speedy compliance and necessary action.

Certified copy as per rules.

(Satyendra Kumar Singh) Judge vibha/gp

GEETA Digitally signed by GEETA PRAMOD DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb 32501850a4984b5b63f6d7a38,

PRAMOD pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE38 74D434, serialNumber=41554F8E701AEEB833278B4FDD900CBED 72CCF299EA61E33BBE6175289BA0390, cn=GEETA PRAMOD Date: 2022.05.09 16:22:59 +05'30'