Madhya Pradesh High Court
Relsingh vs The State Of Madhya Pradesh on 10 May, 2022
Author: Satyendra Kumar Singh
1
Cr.A. No.835/2017
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 10TH OF MAY, 2022
CRIMINAL APPEAL No.835 OF 2017
Between:-
RELSINGH S/O NAVSINGH
AGE : 24 YEARS
OCCUPATION : LABOURER
R/O VILLAGE RAIKHED
DISTRICT : BARWANI (MP)
.....APPELLANT
(BY SHRI PANKAJ AJMERA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH POLICE STATION PANSEMAL
DISTRICT : BARWANI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AKASH SHARMA, 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 judgement dated 19.04.2017 passed by the Court of 2nd Additional
Cr.A. No.835/2017
Sessions Judge, Sendhwa, District Barwani (M.P.) in S.S.T No.64/2015, for
the offences punishable under Sections 363, 366-A and 376(2)(n) of the
Indian Penal Code (in short "IPC") and under Section 3/4 of the Protection of
Children from Sexual Offences Act, 2012 (in short "POCSO Act") and in
view of provisions of Section 4 of the POCSO Act, sentenced him as
follows :-
S. Conviction Sentence
No. Imprisonment Fine Additional
amount imprisonment
in default of
payment of
fine
1 363 of IPC 1 year RI Rs.1,000/- 1 month RI
2 366-A of IPC 1 year RI Rs.1,000/- 1 month RI
3 376(2)(n) of IPC 10 years RI Rs.3,000/- 2 months RI
2. Prosecution story, in brief is as follows :-
(i) The appellant and complainant's minor daughter prosecutrix,
aged about 12 years both were residents of same village Raikhed,
Police Station Pansemal, District Barwani (MP) and were having love
affair with each other. On 16.05.2015, at about 10.00 AM, when
prosecutrix was going towards her school, appellant came there and
forcefully got her seated on his motorcycle and took her to Shahada
(Maharashtra), kept her there captivated in a room and committed rape
upon her repeatedly.
(ii) On the same day, when the complainant returned home and found
his minor daughter prosecutrix went missing, he searched for her at
nearby places and came to know that prosecutrix had eloped with the
appellant. Thereafter, on 28.05.2015, he informed the police about the
incident, on the basis of which, on the same day, at about 19.50 hours,
Cr.A. No.835/2017
missing person's report and at about 20.05 hours, FIR (Exhibit-P/7) was
lodged at Police Station Pansemal, District Barwani against the
appellant for the offence punishable under Sections 363 and 366-A of
IPC. On the same day, SHO Police Station Pansemal Antarsingh
recorded the statements of the complainant. On the next day, i.e. on
29.05.2015, he went to the place of occurrence, prepared spot-map
(Exhibit-P/8), recovered the prosecutrix from the possession of the
appellant as per Dastyabi Panchnama (Exhibit-P/3) and recorded the
statement of the prosecutrix. Thereafter, vide letter (Exhibit-P/10) sent
the prosecutrix to Government Hospital, Sendhwa for her medical
examination, where on the same day, at about 3.30 PM, Dr. Gayatri
Pandit medically examined her and prepared MLC report (Exhibit-
P/11) wherein she observed as under :-
Secondary sexual characters well developed.
Dentition 7 / 7
(iii) Dr. Gayatri Pandit opined in her MLC report (Exhibit-P/11) that
as no injury detected on the private part or all over the body of the
prosecutrix therefore, opinion regarding recent sexual activity cannot be
given. She prepared prosecutrix's vaginal smear slide, preserved and
sealed the same alongwith her pubic hair and clothes and handed over
the same to the lady constable Priyanka Damar, who brought her to the
hospital.
(iv) On the same day, i.e. on 29.05.2015, I.O. Antarsingh arrested the
appellant as per arrest memo (Exhibit-P/4). Vide letter (Exhibit-P/13)
sent him to the Government Hospital, Pansemal for medical
examination where Dr. Rajesh Dhole medically examined him and
found him capable of doing sexual activities as per MLC report
(Exhibit-P/9). He collected and prepared his semen slide and sealed the
Cr.A. No.835/2017
same alongwith his pubic hair and underwear and handed over the same
to the constable, who brought him to the hospital. I.O. Antarsingh got
the statement of prosecutrix recorded under Section 164 of Cr.P.C. He
obtained letter/certificate (Exhibit-P/1) alongwith copy of scholar
register entry (Exhibit-P/2) from Shaskiya Utkrisht Prathamik
Vidyalaya, Bhosle, Phalya, Raikhed, about the age of prosecutrix
wherein her date of birth is written as 15.08.2003. Vide letter (Exhibit-
P/16) sent the seized articles to the Forensic Science Laboratory, Rau,
District Indore for chemical examination. Obtained FSL report
(Exhibit-P/17) and after completion of investigation, filed the charge-
sheet before the Court of 2nd Additional Sessions Judge, Sendhwa,
District Barwani.
3. Learned Trial Court considering the material prima-facie available on
record, framed the charges under Sections 363, 366-A and 376(2)(n) of IPC
and Section 3/4 of the 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-A and 376(2)(n) of IPC and Section 3/4
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 produced school scholar register entry (Exhibit-P/2) with
regard to age of the prosecutrix but nothing has been produced on record on
Cr.A. No.835/2017
the basis of which her date of birth was written therein as 15.08.2003. On
bare perusal of the aforesaid scholar register entry (Exhibit-P/2), it is apparent
that manipulation has been done therein about date of birth of prosecutrix.
The ocular and medical evidence are not consistent. Prosecutrix herself
admitted in her cross-examination that there was prior enmity between her
father-complainant and appellant's father, due to which, this false and
fabricated case has been registered. Prosecutrix's statements are not consistent
about the incident. There are material contradictions and omissions in the
statements of other prosecution witnesses also. 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-A and 376(2)(n) of IPC
and Section 3/4 of 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 28.05.2015, at about 20.05 hours,
prosecutrix's father-complainant (PW-5) lodged an FIR (Exhibit-P/7) at police
station on Pansemal, District Barwani against the appellant stating therein that
his minor daughter prosecutrix aged about 12 years had eloped with the
appellant and went missing since 16.05.2015. Prosecutrix was recovered on
Cr.A. No.835/2017
29.05.2015 i.e. after about 12 days of the incident, as per Dastabi Panchanama
(Exhibit-P/3). In her statement recorded under Section 164 of Cr.P.C.
prosecutrix has stated that on the date of incident, at about 11.00 AM, when
she was going towards her school, appellant came there and forcefully got her
seated on his motorcycle, took her to Shahada (Maharashtra), kept her there
captivated in a room as his wife and also slept with her against her will.
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?
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
Cr.A. No.835/2017
Act") being a public document if prepared by a
government official in the exercise of his official duty.
However, the question does arise as to what is the
authenticity of the said entry for the reason that
admissibility of a document is one thing and probity of it
is different.
21. In State of Bihar v. Radha Krishna Singh 6 this
Court dealt with a similar contention and held as under:
"40. ... Admissibility of a document is one
thing and its probative value quite another--these
two aspects cannot be combined. A document may
be admissible and yet may not carry any conviction
and weight or its probative value may be nil. ...
(SCC p. 138, para 40)
53. ... where a report is given by a
responsible officer, which is based on evidence of
witnesses and documents and has a statutory
flavour in that it is given not merely by an
administrative officer but under the authority of a
statute, its probative value would indeed be very
high so as to be entitled to great weight. (SCC p.
143, para 53) 145. (4) The probative value of
documents which, however ancient they may be, do
not disclose sources of their information or have
not achieved sufficient notoriety is precious little.
(SCC p. 171, para 145)"
22. Therefore, a document may be admissible, but as
to whether the entry contained therein has any probative
value may still be required to be examined in the facts
and circumstances of a particular case. The aforesaid
legal proposition stands fortified by the judgments of this
Court in Ram Prasad Sharma v. State of Bihar; Ram
Murti v. State of Haryana Dayaram v. Dawalatshah;
Harpal Singh v. State of H.P.; Ravinder Singh Gorkhi v.
State of U.P.; Babloo Pasi v. State of Jharkhand; Desh
Raj v. Bodh Raj and Ram Suresh Singh v. Prabhat Singh.
In these cases, it has been held that even if the entry was
made in an official record by the official concerned in the
discharge of his official duty, it may have weight but still
may require corroboration by the person on whose
information the entry has been made and as to whether
the entry so made has been exhibited and proved. The
standard of proof required herein is the same as in other
Cr.A. No.835/2017
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
Cr.A. No.835/2017
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
Cr.A. No.835/2017
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
produced letter/birth certificate (Exhibit-P/1) issued by the Principal, Shaskiya
Utkrisht Prathamik Vidyalaya, Bhosle, Phalya, Raikhed, on the basis of his
school scholar register entry (Exhibit-P/2), wherein prosecutrix's date of birth
is written as 15.08.2003. Principal of the aforesaid school Champalal
Chouhan (PW-1) in para-4 of his cross-examination deposed that complainant
himself came to his school at the time of admission of prosecutrix and had
told her date of birth as 15.08.2003. He in para-2 of his cross-examination
admitted that there is an amendment in the scholar register entry (Exhibit-P/2)
wherein date of birth of the prosecutrix was mistakenly written wrong by him
which he had amended. It is apparent from the bare perusal of the aforesaid
school scholar register entry (Exhibit-P/2) that the last digit of the year of
birth of the prosecutrix i.e. 3 of 15.08.2003 written in number as well as in
words both have been amended and appears to be written/added afterwards
without initials of anyone. Complainant (PW-5) and his wife i.e. prosecutrix's
mother (PW-6) both have admitted that they are illiterate. Prosecutrix's
mother (PW-6) in para-4 of her cross-examination deposed that she is not
aware about the date of birth of her children. Principal Champalal Chouhan
(PW-1) has admitted that prosecutrix's father-complainant had not brought
any document with regard to the age of prosecutrix at the time of her
admission and had told her date of birth on the basis of assumption. In such
Cr.A. No.835/2017
circumstances, the letter/birth certificate (Exhibit-P/1) issued by the Principal
of Shaskiya Utkrisht Prathamik Vidyalaya, Bhosle, Phalya, Raikhed on the
basis of his school scholar register and also scholar register entry (Exhibit-
P/2) 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).
13. In this regard, observations made by the learned Sub-ordinate Courts at
the time of recording of statements of the prosecutrix as well as observations
made by Dr. Gayatri Pandit (PW-9) at the time of her medical examination are
also relevant. Learned Judicial Magistrate First Class while recording her
statement under Section 164 of Cr.P.C. observed her apparent age as 15 years
whereas learned Trial Court while recording her statement during trial had
observed her apparent age as 12-13 years. Dr. Gayatri Pandit (PW-9) in her
MLC report (Exhibit-P/11) although observed prosecutrix's dentition as 7-7/7-
7, means her third molars, which usually erupts between 17 th to 25th years
were not erupted. But she specifically stated therein that prosecutrix's
secondary sexual characters were well developed. Admittedly, there is no
other evidence available on record to demonstrate that the prosecutrix was
below 18 years of age at the time of incident. In view of the aforesaid
discussion, it is not safe to hold that prosecutrix was below 18 years of age
and was minor at the time of incident.
14. So far as consent of the prosecutrix (PW-4) is concerned, she deposed
that appellant on the pretext of marriage took her to Shahada (Maharashtra),
kept her there captivated in a room and committed rape (khota kaam) upon
her repeatedly. She in para-7 to 9 of her cross-examination admitted that in
her community, there is a custom/practice wherein groom's party give dowry
to bride's party. She also admitted that when appellant's father did not give
Rs.30,000/- to her father, he broke up her engagement with the appellant. She
also admitted that appellant and his father themselves left her to her home.
15. Prosecutrix in paras-13 to 15 of her cross-examination admitted that
Cr.A. No.835/2017
there is a dispute between her father and appellant's father that is why she is
stating against the appellant. She has specifically denied the fact that
appellant kidnapped/abducted her on the date of incident. As her age at the
time of incident has not been found proved below 18 years and her statements
with regard to commission of the offence of rape are also not specific, in such
facts and circumstances of the case, this Court finds that prosecution has also
failed to prove that there was no consent on the part of prosecutrix. Thus, this
Court is of the considered opinion that the impugned judgement cannot be
sustained in the eyes of law and facts on record and is liable to be set aside.
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.835/2017 filed by the appellant - Relsingh
stands allowed.
(ii) The impugned judgement of conviction and order of sentence
dated 19.04.2017 passed by the Court of 2nd Additional Sessions Judge,
Sendhwa, District Barwani in S.S.T. No.64/2015 by which appellant has
been convicted under Sections 363, 366-A and 376(2)(n) of IPC and
sentenced him as stated in para-1 of this judgement is hereby set aside.
(iii) Appellant be set at liberty forthwith, if he is not required in any
other case. His bail bonds, if any, shall stands discharged.
(iv) Fine amount, if any, deposited by the appellant be refunded to
him.
16. 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.
(Satyendra Kumar Singh)
Judge
gp
GEETA
Digitally signed by GEETA PRAMOD
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postalCode=452001, st=Madhya Pradesh,
2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb3250185
PRAMOD
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99EA61E33BBE6175289BA0390, cn=GEETA PRAMOD
Date: 2022.05.09 16:23:43 +05'30'
